HKSAR v. NAYAB AMIN AND OTHERS

CACC 341/2017

[2020] HKCA 196

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 341 OF 2017

(ON APPEAL FROM HCCC 115 OF 2017)

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REASONS FOR JUDGMENT

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The Court:

1.  Introduction

1.  The 1^st (“D1”), 2^nd (“D2”) and 3^rd (“D3”) applicants were jointly charged with one count of robbery, contrary to section 10(1) and (2) of the Theft Ordinance, Cap 210 (“Count 1”), while the 4^th applicant (“D4”) was charged with one count of handling stolen goods, contrary to section 24 of the same Ordinance (“Count 2”).  They pleaded not guilty to the offences and were tried before High Court Judge Wilson Chan (“the judge”) and a jury. 

2.  The applicants were convicted of their respective counts by the verdict of the jury.  On 9 October 2017, D1, D2 and D3 were sentenced to 11 years’ imprisonment for Count 1, whilst D4 was sentenced to 3 years and 6 months’ imprisonment for Count 2.  All of the applicants are now seeking leave to appeal against their convictions.

3.  At the hearing of the appeal we allowed the applications of D1, D2 and D3, quashed their convictions and ordered a retrial.  For D4, we refused his application and dismissed his appeal.  These are our reasons for our orders.

2.   The trial

2.1   The prosecution case

4.  On 18 March 2016, at around 2:06 pm, whilst Mr Nasit Arvind Kanubhai (“PW1”) was on the way to an appointment to show some samples of diamonds to a potential customer in Hung Hom, he was hit on the back of his head by a hard object whilst walking along Man Yue Street in To Kwa Wan.  PW1 fell to the ground and his bag containing eight packets of a total quantity of about 1,100.59 carets of diamonds, GIA Reports and various receipts in the name of PW1’s company, Fancy Creations, was snatched by a group of men.  The robbery was over within some 15 seconds.

5.  CCTV cameras in the area captured the robbery and the flight of the robbers.  The CCTV footage revealed that at least seven men were involved and they appeared to be South Asians.  It also captured the robbers running down an alley and some stairs on which one of the robbers stumbled.

6.  On 28 April 2016, 41 days after the robbery, Chief Inspector Ho (“PW2”) attended a meeting in a room at the CEO karaoke bar located in the Megabox building at Kowloon Bay (“the Megabox meeting”).  The Megabox meeting was arranged by a person who remained anonymous at trial because the prosecution refused to disclose his identity.  He was referred to as Mr X, and he accompanied PW2 to meet some South Asian males, who were offering for sale a quantity of diamonds.  

7.  According to the evidence of PW2, four South Asian males including D1, D2 and D3 were present at this meeting.  At the meeting, only seven packets of diamonds were shown to PW2 but they were shown together with receipts bearing the name Fancy Creations. 

8.  PW2 testified as to the conversation he had with D1, D2 and D3 at this meeting.  He said they claimed they had stolen diamonds about a month earlier in Hung Hom and metal pipes had been used to hit the head of the victim.  They also said that as they were fleeing from the scene of the robbery they had stumbled on some stairs.  They claimed they had risked their lives to obtain the diamonds. 

9.  PW2 said the diamonds he examined at this meeting were similar in size and colour to the diamonds that were later seized and produced at trial.  PW2 testified that after negotiations over a price he agreed to purchase the diamonds for HK$400,000.  PW2 and Mr X left the meeting on the understanding that a further meeting would take place when the diamonds and money would then be exchanged.

10.  On 11 May 2016, PW2 together with Sergeant 52011 (“PW9”) met Mr X and D1 and D2 outside the New World Millennium Hotel in Tsim Sha Tsui.  They then proceeded to Room 1125 of the hotel.  Upon entering the room, D1 and D2 then spent about five minutes checking the room by opening and closing the cupboards and drawers.  Thereafter, D1 left the room in order to collect a bag from D4 at the hotel lobby.  PC 13178 (“PW3”) observed D1 walk out of the hotel and talk on the telephone.  Shortly thereafter, D3 appeared and met D1.  A taxi then approached and D4 alighted from the taxi holding a bag.  D4 and D1 went into the hotel and after a few minutes D4 came back out of the hotel and into the street.  He was observed to be no longer carrying the bag that he had with him when he entered the hotel.

11.  D1 returned to Room 1125 and produced from the bag, which D4 had been seen carrying, seven packets of diamonds and receipts bearing the name of Fancy Creations.  Mr X then left the room on the pretext of getting the money and some drinks for PW1, whilst PW1 then made a telephone call giving a pre-arranged signal for the team of police to enter the room and make the arrest.  Inspector Leung (“PW10”) was with the police arresting team that entered the hotel room.  They arrested D1 and D2 at the room, whilst D3 and D4 were subsequently arrested in the vicinity of the hotel by other police officers who had been stationed nearby. 

12.  The diamonds recovered at Room 1125 weighed 585.86 carats and they were later identified by PW1 as being some of the diamonds that had been stolen from him during the robbery.

2.2   The defence case

13.  The applicants did not testify and the defence cases were advanced by way of cross-examinations and submissions.  It was the case of D1, D2 and D3 that other than the alleged admissions made to PW2 at the Megabox meeting on 28 April 2016, there was no direct evidence linking D1, D2 and D3 to the robbery.  The recent possession of the stolen diamonds at the meeting could equally give rise to an inference of handling stolen goods, an offence to which D1, D2 and D3 had offered to plead guilty, but which offer was declined by the prosecution. 

14.  The thrust of the defence case of D1, D2 and D3 was that it was implausible that at the Megabox meeting on 28 April 2016, they would make admissions to a stranger that they had been involved in a robbery.  It was also submitted that in order to obtain the best price for the diamonds they wished to sell to PW2, they would not have admitted that the diamonds were stolen.  The defence suggested that the admissions allegedly made by D1, D2 and D3 had been concocted by PW2 in order to bolster the evidence against them on the charge of robbery and in support of this allegation the defence relied heavily on the fact that the alleged admissions had not been put to the applicants during their video records of interview.  In his testimony, PW10 explained the reason for this.  He said that he performed a balancing exercise between protecting Mr X’s identity and putting the admissions to the applicants.  He had decided that he should protect Mr X’s identity and so he briefed his officers not to ask the applicants any question about the Megabox meeting on 28 April 2016 unless the applicants first raised it.

15.  The defence case of D4 was that he believed the contents in the bag, which he had passed to D1 on 11 May 2016, contained D1’s clothing.  D4 did not elect to testify, but in his video record of interview dated 13 May 2016, he stated that he did not believe the bag contained any diamonds.  He said he received the bag from D1 on 10 May 2016 and he had not opened the bag to check inside.  He was told that the bag contained D1’s shirt and trousers; and since the bag did not weigh much, D4 said he believed what he had been told and did not believe the contents of the bag were stolen goods.

3   The application for the disclosure of Mr X’s identity

16.  As the prosecution did not intend to call Mr X as a witness in the prosecution case, no witness statement was taken from him.  At a pre-trial review that was held on 27 June 2017, the defence asked that a witness statement be obtained from Mr X and that they be provided with his identifying particulars so that the defence could explore whether he should be tendered by the prosecution at the trial. 

17.  The basis of this disclosure application was an assumption that since Mr X attended the Megabox meeting he must be able to give relevant evidence in respect of all that took place at that meeting, especially in respect of the admissions that the applicants were alleged to have made, but which they denied having made.  

18.  In the pre-trial review questionnaire, the prosecutor, Ms Yip, had indicated she would be making a claim for Public Interest Immunity (PII) in respect of the identity of Mr X and that the prosecution would not be taking a statement from Mr X, as any statement would reveal information about him that the prosecution did not want to disclose.

3.1   The inter-partes hearing on 27 July 2017

19.  The next hearing was on 27 July 2017 and this was used as an occasion for counsel for the applicants to explain to the court their basis for saying that disclosure of Mr X’s identity was necessary to demonstrate the innocence of their clients. 

20.  Mr Beel, who appeared for D1 at trial, informed the judge that what was relevant to the defence was Mr X’s accounts of what transpired at the Megabox meeting and how he, Mr X, came to be involved in it. It was the defence case that the applicants were not involved in the robbery of the diamonds, and the only evidence against D1 of being involved came from admissions he allegedly made at the Megabox meeting but which he denied making.

21.  Mrs Panesar, who appeared for D2 at trial, explained her client’s position in much the same way.  When the judge challenged her that she wanted to test the veracity of PW2’s account, she agreed but she also maintained:

“So the matter goes beyond just mere credibility of PW2. It actually touches on the defences of, I think, probably on D1’s and D2’s, and possibly on D3’s as well…But it goes to the crux of the defence…”

22.  Mr Sherry, who appeared for D3 at trial, adopted all that had been said by counsel for D1 and D2 and had nothing to add.

23.  The court then adjourned to the following day, 28 July 2017, to enable the prosecution the opportunity to advance its application in an ex parte hearing.  In doing so, the court was following the procedure laid down in R v Davis[1], which the Court of Appeal in HKSAR v Agara[2] implicitly adopted as the procedure for Hong Kong.  No objection was taken by the parties to adopting this course.

3.2   The ex parte hearing on 28 July 2017

24.  In the course of the ex parte hearing, Mr Chan, on behalf of the prosecution, submitted to the judge that establishing “mere relevance” of the sought information was not sufficient to overcome the PII claim.  It had to go beyond relevance and be necessary, in the Agara sense, for the purpose of demonstrating the innocence of the defendants.  In terms of Mr X’s actual role, Mr Chan argued that Mr X did not participate in the robbery or the handling.  He only helped arrange the meeting.

3.3    The inter partes hearing on 1 August 2017

25.  On 1 August 2017, an inter partes hearing was held so that the defence could address the court on the prosecution’s application.  At this hearing the judge invited counsel for the applicants to address him on the legal principles relevant to this type of application and specifically the test to be applied by the court in adjudicating upon it.

26.  Mr Beel informed the judge that he did not take issue with the principles of law on which the prosecution relied but submitted that they were relevant to “straight forward informers”, whereas Mr X was a participant in a law enforcement investigation and was acting as their agent.  He summarised his position in the following way:

“Now, there’s a conflict between my instructions and what PW2 has put forward. Now, these aren’t collateral matters. These aren’t matters on credibility. These are matters of evidence, relevant evidence of the issues that need to be determined by the jury, factual issues that need to be determined by the jury. The defence, therefore, can’t present its case fully without Mr X’s participation.”

27.  Mr Beel relied on a decision of the English Court of Appeal, R v Reilly[3], in which the court appears to have distinguished between an informer in the strict sense, and a person who participated in a law enforcement undercover operation.  No judgment of this case was made available to the court and Mr Beel relied on the following Criminal Law Review summary of what was said by the court:

“There was an important distinction between being a person who could not give relevant evidence and a person who would not help the defence. The court should not assume that he might well not help the defence and it was plain that ‘Paul’ [the participating agent] could give important evidence concerning several matters.”

Mr Beel urged the judge to adopt this approach when determining whether the defence had satisfied the Agara test.

28.  Mrs Panesar and Mr Sherry also emphasized the active role played by Mr X and argued that his involvement gave him the potential ability to undermine the prosecution case and to assist the defence case.

3.4   The judge’s ruling on the PII claim

29.  Having heard submissions from the defence, the judge, on the same day, granted the prosecution’s application and made an order that Mr X’s identity be suppressed and that no questions could be asked of any witness that might lead to Mr X being identified.

30.  In giving his ruling, the judge relied on the law as set out in judgments of this court in Agara and HKSAR v Lam Yat Fung Timothy[4].  The judge said:

“In the present case, the defence appears to seek disclosure of X in order to test the credibility of prosecution witnesses. For example, as to what transpired at the two meetings and how the meetings were set up. The onus is on the defence to show that the information is necessary. It is however speculative to say that the cross-examination of X may assist the defence. Mere speculation of course does not constitute a basis for an invasion of the informer privilege. The defendants can of course tell how the meetings were set up as far as they are concerned.

In the circumstances, I am not satisfied that the disclosure of information sought by the defence is ‘necessary to demonstrate the innocence of the accused’ [see HKSAR v Lam Yat Fung Timothy ibid at paragraph 15].

In my view, the defence has failed to show that the disclosure sought goes beyond issues amounting to ancillary attacks on the prosecution case.”

4   The application to withdraw the alleged admissions from the jury

31.  On 8 August 2017, the defence invited the judge to exercise his residual discretion to rule inadmissible the evidence of the alleged admissions made by D1, D2 and D3 at the Megabox meeting on 28 April 2016 on the basis that although the alleged admissions may have been voluntary, they were obtained by PW2 while he was working undercover and through interrogation of D1, D2 and D3.  It was submitted that the use of these admissions would result in an unfair trial.  Because of the manner in which we have disposed of the appeal, it is not necessary for us to discuss this application in any further detail.

5.   Events prior to the hearing of the appeal on 12 December 2019

5.1   The hearing on 26 March 2019

32.  When this appeal first came on for hearing on 26 March 2019, we adjourned it so that we could be addressed by the parties on an issue that was of concern to us and which we felt was important to the resolution of the appeal.  We invited parties to assist us by filing written submissions addressing the following question:

“Where a person participates in an undercover operation for a law enforcement agency, and can therefore potentially give evidence about criminal conduct that the prosecution will lead at trial, how does a judge deal with a claim of public interest immunity in respect of that person whom the prosecution does not propose to call?”

5.2   The ex parte hearing on 11 December 2019

33.  On this date, the court sat by way of an ex parte hearing to allow counsel for the respondent to address the court on the factual basis of the PII claim.  The court had before it the same materials that had been provided to the judge together with a transcript of the ex parte proceedings that took place before him.

5.3   Communication from the court on 11 December 2019

34.  The day before the hearing of the appeal, the court informed the parties that it was particularly concerned about the directions of the judge in respect of the evidence of recent possession as allowing of an inference that the applicants were complicit in the robbery[5].  The court indicated it wished to hear specific argument on the propriety of these directions in the event that the jury did not accept the admissions which the prosecution alleged were made by the applicants at the Megabox meeting.  These directions of the judge were the subject of complaint in Ground 3 of D1’s and D2’s Perfected Grounds of Appeal and Ground 3(i) of D3’s Re-Amended Perfected Grounds of Appeal.

6.   The appeal

35.  Grounds of appeal common to D1, D2 and D3 concerned the prosecution’s PII claim and the judge’s directions on recent possession.  In respect of the PII ground of appeal and of the question posed by the court on 26 March 2019, the submissions were advanced by Mr Duncan SC, for the applicants, and by Mr Tam SC, for the respondent.  The recent possession ground of appeal for D1 and D2 was argued by Mr Beel and his submissions on it were adopted by Mr Sherry, for D3.

6.1   The Grounds of Appeal of D1, D2 and D3

36.  Mr Beel, in his Perfected Grounds of Appeal, for both D1 and D2, relied on four grounds of appeal, which can be summarised as follows:

(i)  the judge in granting the prosecution’s application for PII in relation to Mr X had erred in law, and/or failed to properly consider that the applicants would be denied disclosure of matters that were material to their defence and thereby wrongly failed to consider, if at all, that the interests of a fair trial outweighed any consideration of public interest immunity;

(ii)  the judge erred in law and failed to, in the interests of a fair trial, exercise his discretion to exclude, and/or to withdraw, the evidence of D1 and D2’s respective alleged admissions;

(iii)  the judge erred in law and/or failed to direct the jury that recent possession of the stolen property was also applicable to the alternative verdict of handling stolen goods; and

(iv)  the judge erred in law and/or failed to properly sum up D1 and D2’s respective cases in a fair and balanced manner. The respective cases of D1 and D2 were only put to the jury in a more detailed manner after the same has been raised by defence counsel.

37.  Mr. Sherry in his Amended Perfected Grounds of Appeal also raised identical complaints to those set out in (i) – (iii) above, and in addition complained that the judge failed to direct the jury on how to resolve a critical issue in the case, namely whether D3 spoke to PW2 in Cantonese when negotiating the sale and purchase of the diamonds as there was contradictory evidence on this issue.

6.2   Ground 1 for D1, D2 and D3: The PII claim

38.  PII was relied on as a ground of appeal by D1, D2 and D3.  Legal issues relating to this ground were argued by Mr Duncan , for all three applicants, and he also relied on a written submission filed by Mr McCoy SC, his predecessor in the case.

39.  In the written submission, it was asserted that the Canadian Supreme Court decision of R v Leipert[6] is incorrect and should not be followed even though it has been partly accepted by the Court of Appeal in Agara and fully accepted by it in Lam Yat Fung Timothy. It was said that the Court of Appeal in Lam Yat Fung Timothy expressed the correct test for informer privilege by articulating it as the disclosure of information that could demonstrate the innocence of the accused and that its subsequent use of the language in Leipert was wrong. 

40.  Mr McCoy concluded in the written submission as follows:

“It is submitted that the default position is that informer privilege exists and is only displaced where the innocence exception is engaged. That means that the initial burden on the defendant is to demonstrate that the relevance of the informer’s evidence is such that without it the defendant could not get a fair trial. Where the informer participated in the events constituting, surrounding or following an alleged crime or had direct contact with the defendant at the material time, such scenarios will generally displace the initial burden on the defendant, such that thereafter disclosure is required but subject to the minimum derogation necessary to protect the public interest in question and must never imperil the fairness of the trial.”

41.  Mr Duncan submitted that R v H[7] remains good law and best represents the position in Hong Kong, whilst Leipert placed an unreasonable or unconstitutional burden on the defendant to demonstrate a necessity that the informer be called as a witness.  As the argument unfolded it became apparent that this last submission was the key issue for the applicants, and in developing his submission Mr Duncan said that in reality the issue between the applicants and the respondent was not great.  What the applicants disputed was the assertion by the respondent “that it is only in circumstances where it is strictly necessary to prove the defendant’s innocence that information regarding the informer should be disclosed.”  Mr Duncan argued that more modern authority, as reflected by what was said in H, did not set the bar so high and that all a defendant had to do was to demonstrate that the undisclosed material may strengthen the defendant’s case or weaken the prosecution case.  

42.  Mr Duncan also submitted that the judge was wrong to rule that the only basis that had been advanced for which the information was needed was to test the credibility of the prosecution witness, PW2.  Consequently, the judge never recognised the critical distinction between a mere informer and a person who participates in the events constituting, surrounding or following a crime and consequently failed to consider that Mr X had a relevance beyond credibility.

43.  In answer to the question which the court had raised and which is set out at [32] ante, Mr Duncan submitted that informer privilege that applies can be displaced when a defendant demonstrates that the relevance of the informer’s evidence is such that without it the defendant could not get a fair trial.  However, where the informer participated in the events constituting, surrounding or following an alleged crime or had direct contact with the defendant, then in any of these situations there was no initial burden on the defendant to demonstrate he could not receive a fair trial and disclosure of the informer’s evidence is required but subject to the minimum derogation necessary to protect the public interest in question without imperilling the fairness of the trial.  This was accepted in Leipert and other Canadian cases.

44.  In the present case, as Mr X had participated in the undercover operation he was known and identifiable, and therefore he would be useless for future police work.  That being so, there was no prejudice to any important public interest that could be identified.  The rationale for any privilege is lost because it is coterminous with his on-going anonymity.

45.  Mr Duncan suggested that the judge could, under proper procedure, have convened a second ex parte hearing so as to allow the defence to set out all the issues on which they intended to cross-examine Mr X, and the judge could have made context-specific rulings as to the parameters of the cross-examination.  He also suggested that, in applying the minimum derogation approach as set out in H,the judge should have required Mr X to testify but in conditions of anonymity.

6.3   Ground 3: The directions on recent possession

46.  In respect of Ground 3, Mr Beel accepted that the judge had properly directed the jury in relation to the possible verdicts of robbery and, alternatively, the offence of handling stolen goods.  The judge had further directed the jury that if they had any doubts about the reliability of the alleged admissions then that would only leave the applicants’ comparatively recent possession of the stolen property to connect them, inferentially, to the robbery.  However, the judge had failed to direct the jury that if they rejected the alleged admissions, the evidence of recent possession could also allow of an inference that the applicants were no more than the handlers of stolen goods.  The jury was in effect given only one legal alternative in regard to the inference to be drawn from recent possession and this was a material misdirection by the judge.

6.4   D1 and D2’s remaining grounds of appeal

47.  As Grounds 2 and 4 are not relevant to the disposition of the appeal we shall say no more about them. 

6.5   The submissions of D3

48.  In respect of grounds (i) and (iii), Mr Sherry adopted the submissions made by Mr Beel.  He argued that there was an obligation on the prosecutor to disclose what Mr X could say about the Megabox meeting but the prosecutor refused to furnish the defence with a witness statement by Mr X.  Instead the defence was only told that Mr X was an informer and PII would be claimed in respect of his identity.  Mr Sherry submitted that given the potential importance of Mr X’s testimony the non-disclosure in respect of him should have been kept to the minimum extent required to protect his identity.

49.  As for ground (iii), Mr Sherry submitted that when dealing with the evidence of recent possession the judge focused too much on laying out a reasoned route to a conviction for robbery, without dealing with the alternative of handling, when this alternative was the most likely outcome should the jury not rely on the alleged admissions.  The effect of the judge’s direction was that if the jury was sure that the diamonds were stolen, then the only inference to be drawn from the remaining evidence was that the applicants were the robbers of those diamonds and this is not correct. 

50.  There is no need for us to refer to his submissions in respect of his other grounds of appeal.

6.6   The ground of appeal of D4

51.  D4 was represented by Mr Parry.  In his Perfected Grounds of Appeal he set out a single ground of appeal, namely, that the judge failed to sufficiently or properly sum up D4’s case to the jury, particularly in respect of D4’s knowledge, belief and suspicion of the contents of the bag which D1 passed to him.

52.  Mr Parry submitted that the judge had failed to direct the jury on D4’s positive defence case as stated by him in his video record of interview.  This was that he thought the bag he carried at the material time contained D1’s clothes and that he did not know there were diamonds inside.  He argued that the judge failed to also remind the jury that even if D4 knew there were diamonds in the bag, they had to be sure that D4 knew the diamonds were stolen.  The judge did not draw the jury’s attention specifically to the cross-examination of PW1 on the issue of whether the diamonds in the bag that D4 carried were the diamonds that had been robbed from PW1.

53.  Mr Parry claimed that the judge had only discussed D4’s case on two occasions.  The first occasion was when he summarised D4’s case in two sentences as follows:

“Now, as far as the 4^th defendant is concerned, he says you cannot even be sure that he knew there were diamond inside the rucksack. Of course, if he did not know, then he cannot be guilty of the offence of handling stolen goods.” [8]

54.  The second occasion was when the judge summarized D4’s response to the prosecution’s argument that D1 would have told D4 about the diamonds:

“Now, the contrary argument by Mrs Panesar on behalf of the 4^th defendant is that the best way, perhaps, to protect the diamonds is to not tell the 4^th defendant the fact that the diamond is inside the rucksack. That is the defence perspective on the position of the 4^th defendant.”[9]

55.  These material omissions, Mr Parry submitted, prejudiced D4 and rendered the summing-up unfair and unbalanced.  For the relevant legal principles, which were not in dispute, he relied on what was said by  Stock JA (as Stock NPJ then was) in HKSAR v Hui Chi Wai & Ors[10] and Hartmann JA in HKSAR v Hong Tsz Yin[11].

56.  Mr Parry submitted that the remarks by the judge in his summing-up were insufficient to summarize D4’s case and the evidence in support of it.  There was no mention of the contents of D4’s video record of interview and the cross-examination of PW1. 

7.   The respondent’s submissions on conviction

7.1   Ground 1: The PII claim

57.  For the respondent, Mr Tam, leading Mr Chan, Ms Yip and Mr Ching, made submissions on the PII issue and Mr Chan advocated for the respondent on the other grounds of appeal. 

58.  In respect of the first ground of appeal, Mr Tam submitted that the purpose of the applicants seeking disclosure of Mr X was to challenge the credibility of PW2 or to raise collateral matters.  These purposes did not satisfy the requirements of the exception as provided in Lam Yat Fung Timothy, where this court set out six principles and in particular:

“(4) speculation that the information may assist the applicant must be resisted; and mere speculation does not constitute a basis for an invasion of the informer privilege.”[12]

59.  Mr Tam further submitted that the ground relied on by the applicants to seek disclosure of Mr X did not satisfy the requirement of the “innocence at stake” exception as laid down in Leipert, and they had failed to demonstrate that the material in relation to Mr X went directly to any of the elements of the offence.

60.  Mr Tam referred to the Canadian case of R v Omar[13], where it was held by the Ontario Court of Appeal that the defence should provide evidence for its allegations supporting disclosure:

“The trial judge was not required to proceed with the disclosure motion on the basis of an abstract theory of relevance that had no foundation in the evidence or anticipated evidence and the positions of the parties, or based on a legal argument that was doomed inevitably to failure.”

61.  Mr Tam argued that D1, D2 and D3 had failed to show that the disclosure of Mr X was necessary in order to demonstrate their innocence and that the information they seek could assist the defence case. They failed to establish the “innocence at stake” exception by merely submitting that Mr X’s testimony may impinge on how the defence case is presented, or by hoping that the information may be able to cast a doubt over what actually transpired and raise a critical doubt on the prosecution’s case.  

62.  The judge’s ruling was based on well-established principles governing informer privilege and he had not fallen into any error. His approach to the matter was consistent with Agara. 

63.  In response to the submissions that when an informer participated in the events constituting, surrounding or following a crime then it would displace the initial burden on the defendant and disclosure of the informer’s evidence is required, Mr Tam submitted that the ultimate question is still whether the actual information is necessary to prove the defendant’s innocence.  In R v Turner[14], it was said that even when the informant has participated, the judge will need to consider whether his role so impinges on an issue of interest to the defence, present or potential, as to make disclosure necessary.  Hence, it does not mean that the “initial burden” on the defence has been generally displaced as suggested by the applicants.

64.  In respect of the reliance on H by the applicants, Mr Tam submitted that the judgment in this case should be treated with caution in Hong Kong.  In light of the statutory and narrower test of prosecutorial disclosure in England, “full disclosure” has a different meaning in England and Hong Kong in the first place. Material which is either neutral in its effect or which is adverse to the defendant is not covered by the “golden rule” of disclosure under the Criminal Procedure and Investigations Act, 1996.

65.  Lastly, Mr Tam submitted that the applicants’ focus on the utility of Mr X in future operations is misconceived.  The public interest involved in protecting informer privilege is much broader and more far reaching than a single individual involved in an operation.  In Canadian jurisprudence, it is also clear that even if an informer loses his privilege in one case, it does not mean that the informer will also lose his immunity in all other cases.

7.2   The question raised by the court

66.  In addressing the question we raised, which is set out at [32] ante, Mr Tam provided a summary of the different approaches to dealing with informer privilege in other jurisdictions.  We found these materials not only of great interest but also very helpful in our deliberations.  However, in the interests of brevity we shall not set out those materials but shall refer to them as necessary later in this judgment.

67.  Mr Tam argued that the courts in Hong Kong have already recognized and adopted the “innocence at stake” exception enshrined in Leipert. The Court of Appeal in Agara was conscious of the constitutionality consideration, and the test it adopted was a legitimate and rational derogation of the defence’s right to fair trial.  Agara has been applied in subsequent cases by the Court of Appeal and the Appeal Committee of the Court of Final Appeal.

68.  Mr Tam submitted that participation in an undercover role on behalf of a law enforcement agency should not per se result in loss of the privilege.  He suggested that the court should take a holistic view of all relevant matters, in particular, the degree of the informer’s participation, the potential evidence that may be forthcoming, the reasons why the defence wishes to have the information, what the defence case is and the relevance or importance of the information to the defence case.  Disclosure of information regarding the informer should only be made in circumstances strictly necessary to prove the defendant’s innocence.  The person does not lose his privilege where his participation in the undercover operation does not raise any real issue in the case that would give rise to a reasonable doubt as to the guilt of the defendant.

69.  Mr Tam further submitted that a PII application based on informer privilege should be determined by reference to the evidence to be adduced and the respective cases of the parties.  However, in Canada, as developed in R v McClure[15], the application to displace the privilege is generally made at the close of the prosecution case or during the defence case, by which time the court has already heard the evidence against the defendant and the defence case put to the prosecution witnesses.  Mr Tam invited this court to consider whether there are real advantages to be gained by adopting the procedures for an informer privilege claim similar to those in Canada.

8.   Ground 3: the directions on recent possession

70.  In respect of Ground 3, Mr Chan submitted that when the summing-up is considered as a whole, it can be seen that the judge made it clear that recent possession was equally applicable to handling stolen goods.  In fact, the “doctrine” of recent possession was simply an example of the drawing of inferences and was, therefore, just a matter of common sense. It would have been obvious to the jury that recent possession is also applicable to the charge of handling stolen goods.

71.  Mr Chan submitted, in the alternative, that even if there was a deficiency in the directions, it was not a material misdirection because of the order in which the jury were to consider the offences, namely robbery before handling, and the jury’s implicit finding that the stolen goods had not changed hands since the robbery.  A misdirection in an alternative count is not material and in fact the lack of direction on recent possession operated to the benefit of the applicants in considering the alternative count of handling stolen goods.

72.  In respect of D4’s complaint, Mr Chan submitted that when the judge was discussing D4’s video record of interview, he highlighted D4’s claim that he believed the bag contained D1’s clothes, as this was what D4 had been told.  The jury was further directed on how to treat D4’s statements in his interview as well as D4’s telephone records.  Thereafter, the judge outlined the prosecution case against D4 and followed it with D4’s contrary argument that “the best way to protect the diamonds was to not tell D4 about their presence inside the rucksack”[16].

73.  As there was an overlap between D1, D2 and D3’s cases regarding the alternative offence of handling stolen goods and D4’s case, the judge first summed-up the overlapping aspects and emphasized that D4’s case went further to suggest that the jury could not even be sure that D4 knew there were diamonds inside the bag. 

74.  In conclusion, Mr Chan argued that notwithstanding any deficiencies in the summing-up no miscarriage of justice actually occurred in respect of the applicants and the present case is, therefore, one where it is appropriate to apply the proviso pursuant to section 83(1) of the Criminal Procedure Ordinance, Cap 221.

9.    Discussion

75.  A number of grounds of appeal have been put forward which are common to D1, D2 and D3.  As we have indicated in [34] of this judgment, we notified counsel in advance of the hearing of the appeal that we were particularly concerned with Ground 3, which is common to all three applicants and which concerns the judge’s directions to the jury on the application of the doctrine of recent possession.  As this is the ground on which we allowed the appeal, we shall deal with it first.

10.   Ground 3: The directions on recent possession

76.  Ground 3 arises in this way.  The judge began his summing‑up by telling the jury that there were three possible verdicts in respect of Count 1: guilty of robbery; not guilty of robbery but guilty of handling stolen goods; and not guilty of either offence.  It was common ground that the evidence going to prove the offence of robbery was (i) the alleged admissions by the applicants of participation in the robbery described by PW2; and (ii) their recent possession of part of the stolen property.  An attack had been made during cross-examination on the credibility of PW2 in respect of the alleged admissions.  It was not, however, disputed that the applicants were in possession of the property both at the Megabox meeting and in the New World Millennium Hotel.  The defence advanced seems to have concentrated on whether the prosecution could prove that the applicants knew or believed that the diamonds and other items were stolen property.

77.  Having directed the jury on how to approach the admissions, the judge then said this:

“Now, members of the jury if, for whatever reason, you are not sure of the reliability of the alleged admissions then you will only be left with the comparatively recent possession of stolen properties to connect the 1st, 2nd and 3rd defendants with the robbery, that is, if you are sure that the diamonds recovered are, indeed, part of the stolen property.

Where it is proved that a robbery has taken place and that soon thereafter the defendant was found in possession of the stolen property, it is open to the jury to convict him of robbery. This doctrine of recent possession is essentially just an inference that can be drawn from suspicious facts that calls for an explanation. In this regard, please remember what I have previously directed you on the drawing of inferences, in particular, you may only draw inferences of guilt or other inferences against the defendant if you are satisfied that the inference of guilt or other inferences against him is the only reasonable inference you can draw.

The question of whether a robbery is or is not recent must, of necessity, depend on all the circumstances. The word ‘recent’ is relative and is incapable of any exact or precise definition. It is a question of fact and the very nature of the stolen article - and by that I referred to articles including the diamonds but not only the diamonds but including the invoices and the GIA certificates. The readiness in which these stolen articles can or are likely to pass from hand to hand; the ease of the identification and the likelihood of transferability all may have a bearing for you to reach a conclusion as to whether their theft was recent or not.

Further, it can be noted that, apart from the diamonds, a variety of stolen items from the March robbery were displayed at the Megabox meeting on 28 April 2016. The invoices, the red zipper bag, etc. you may think that the presence of these items together which are all related to the robbery may strengthen the inference of guilt. If the diamonds had been innocently acquired by the defendants, how can the presence of the stolen invoices/receipts be explained? These are matters for you.”[17]

78.  The complaint made by D1, D2 and D3 by Ground 3 of their respective Perfected Grounds of Appeal is that recent possession went as much to the issue of the alternative verdict of handling stolen goods as it did to robbery.  Yet the judge has effectively limited its application to robbery only.  If the jury were not sure of the truth and reliability of the alleged admissions, they would still have convicted of robbery on the above directions if they were satisfied that the applicants were in recent possession of the stolen items, without realising that recent possession went equally to the alternative and, so it is argued, the more likely verdict on the facts of handling stolen goods.

79.  Accordingly, we invited the parties to address us on what aspect of the applicants’ possession of the stolen property, or any other evidence there was, which pointed to robbery as being the only reasonable inference to draw rather than handling stolen goods.  For the applicants, Mr Beel and Mr Sherry submitted there was none.  The possession of the diamonds, the receipts and the GIA reports, as well as the stolen red zip bag, were equally capable of yielding an inference of handling stolen goods as of robbery.  The unusual behaviour of D1 and D2 in checking out the room in the New World Millennium Hotel before beginning their meeting on 11 May 2016 was just as, if not arguably more, probative of them checking on the place where a crime is about to be committed (namely, receiving money for goods they knew to be stolen), as with participation in the crime from which the stolen property was derived (namely, robbery).

80.  As for the telephone records detailing the frequent contacts between D1, D2, D3 and D4 on 18 March 2016, it was argued that they were of limited utility, providing only a snapshot of the contact between the four men.  For all we know, it was suggested, such a pattern may have been a daily routine for the applicants.

81.  Mr Chan, on the other hand, asked why the diamonds would have been produced in their original stolen red zip bag, together with the receipts and the GIA reports if the applicants really believed that the diamonds were not stolen.  He further submitted that the telephone records pointed to the applicants all being together at the time of the robbery on 18 March 2016. 

82.  It may indeed be odd that the items produced by the applicants at the Megabox meeting and subsequently at the New World Millennium Hotel were in the same state in which they had been taken from PW1.   However, these were diamonds and it is not perhaps surprising that anyone wishing to sell stolen diamonds would want to impress upon the would-be purchaser that they were genuine.  We do not consider that the presence of the stolen bag and the documents, in conjunction with the diamonds, by themselves make the inference that the applicants were robbers more irresistible than that they were handlers.

83.  We were more persuaded about the significance of the telephone records, although it would have been preferable if there had been records for the days either side of 18 March 2016, so that we would have a better idea of the pattern and regularity of the applicants’ communication and interaction with each other.  Nevertheless, Mr Chan made a strong point about the records for 18 March 2016.  Notwithstanding that the applicants had been in almost constant contact throughout the morning, afternoon and evening of that day, there was a noticeable gap between the last call from D1 to D2 at 11:29:42 hours and the next call between the two men at 14:13:54 hours, during which period there was no telephone contact at all.  That suggested that the applicants were at some stage during that period all together and had no need, therefore, to communicate with each other by telephone.  Since we know, from the CCTV evidence as well as PW1’s testimony, that the robbery was committed at or shortly after 14:00 hours on 18 March 2016, the telephone evidence is consistent with the applicants’ presence together at the time of the robbery.  As well, there was frequent telephone contact between them on either side of the period of the robbery.

84.  Whilst we acknowledge the force of the point, which is certainly capable of supporting the inference that the applicants were the robbers, we do not think it can by itself make the inference, the only reasonable inference.

85.  Similarly, the lies told by D3 in his interview as to his whereabouts and contacts with the other applicants on the day of the robbery are clearly capable of supporting the prosecution case, but we do not think that by themselves they could have led to the only reasonable inference that D3 was a robber rather than a handler.

86.  In all the circumstances, we were persuaded that it was a misdirection to invite the jury to have regard to recent possession in support of a conviction for robbery only, as distinct from handling stolen goods, if they were not prepared to accept the applicants’ admissions to PW2.  Although we accept Mr Chan’s analogy of evidence being like the strands in a rope, we consider that the safest course was to tell the jury that if they were not sure of the truth and reliability of the admissions made to PW2, they should find the applicants not guilty of robbery and then consider whether the remaining evidence established that the applicants were guilty of handing stolen goods as an alternative.

87.  We should make clear that we are not in any way to be taken as suggesting that the jury should not have accepted PW2’s evidence of the applicants’ admissions: that was a matter for the jury upon receiving proper directions from the judge.  However, if they were not prepared to act on the admissions alleged, the evidence of recent possession was not enough to convict the applicants of robbery because such possession was equally capable of leading to an inference of handling stolen goods.  Furthermore, the other evidence did not point irresistibly to the applicants being robbers as opposed to handlers. 

88.  We should add that no issue was taken before us that the judge was not entitled to give the jury a proper direction in relation to recent possession.  Although the period of time between the robbery on 18 March 2016 and the meeting at the Megabox on 28 April 2016 was some 41 days, for which the judge described the applicants’ possession as “comparatively recent”, one has to remember that the commodity in question was a consignment of diamonds of considerable value.  The nature of that consignment and its saleability was much rarer and more specialised than other more common and readily disposable stolen items, such as mobile telephones, iPads or laptop computers.  It was, as the judge properly directed, a matter for the jury, bearing in mind all the circumstances, whether the possession of the stolen items was recent enough to draw the inference, in the absence of any explanation from the applicants for their possession.

89.  It was for these reasons that we considered the appeal must be allowed on this ground alone.  

11.   The other grounds of appeal for D1, D2 and D3

90.  Given our disposal of the appeal and the consequent order of retrial that we have made, it is neither necessary nor appropriate to comment on the other grounds of appeal.

91.  However, we have felt it necessary, given the importance of the issue in the context of the present case and in deference to counsel’s arguments, to deal with the issue of PII, which forms the basis of Ground 1 of the appeals by D1, D2 and D3; particularly as we, like the judge, have been made privy to the reasons for which such immunity was sought.

12.   Ground 1: The PII claim

92.  This ground of appeal deals with that aspect of PII law which deals with a class immunity conferred on informers.  Though sometimes referred to as informer privilege it must be understood within its legal context as a class claim of PII. 

93.  Addressing all the issues raised by this ground of appeal requires us to set out in a step-by-step way when a PII claim needs to be made, how it is to be made and whether, when such a claim is made, the law distinguishes between an informer in the strict sense whose assistance to law enforcement investigations is limited to providing only information and doing so in confidence, and a person who assists the law enforcement agency by actively participating in its investigation.  It is also necessary to explain how a PII claim dovetails with the legal principles relating to the prosecutor’s disclosure duty and a defendant’s constitutional right to a fair trial. 

94.  Essentially there are three questions.  They are:

(i)  is the information which the defence requests disclosable, that is, is it caught by the prosecutor’s common law disclosure duty;

(ii)  if the answer to (i) above is “yes”, is the claim to PII in respect of the disclosable information established; and

(iii)  if the answer to (ii) above is “yes”, can the defendant still receive a fair trial if the PII claim is upheld?

If the answer to (iii) above is “no” and further disclosure cannot be made without causing “a real risk of serious prejudice to an important public interest”[18]  then the prosecution will have to consider whether it should discontinue the proceedings as an alternative to making disclosure.

95.  Each of these issues, disclosure, PII and fair trial are distinct issues which have to be separately addressed by the judge before whom a PII claim is made but the considerations relevant to each may overlap or interact with each other.  We shall deal with each of these issues in turn.

12.1   Disclosure 

96.  The starting point for this discussion is to recognise that the only reason a PII claim needs to be made is because of the existence of the prosecutor’s disclosure obligation.  If the information or material that is protected by PII is not caught by the disclosure obligation then there is no need to make a PII claim because the information or material is simply not disclosable.  It is the disclosure obligation that operates as a trigger for PII.  This was adverted to by Lord Templeman in R v Chief Constable of West Midlands Police, Ex parte Wiley[19] when he said:

“ Public interest immunity is a ground for refusing to disclose a document which is relevant and material to the determination of issues involved in civil or criminal proceedings…Whenever disclosure in litigation is under consideration, the first question is whether a document is sufficiently relevant and material to require disclosure in the interests of justice. In civil proceedings a document need only be disclosed if disclosure is necessary ‘for disposing fairly of the cause or matter or for saving costs:’ R.S.C., Ord. 24, r.8. In criminal proceedings a document need only be disclosed if it is relevant and material for the establishment of the guilt or innocence of the accused.

…

   If a document is not relevant and material it need not be disclosed and public interest immunity will not arise.”

97.  Whether information or material is disclosable is determined by the application of the disclosure test.  In Hong Kong, the disclosure test is different from England and Wales.  Here, we have the common law test for disclosure as expounded by the Court of Final Appeal in HKSAR v Lee Ming Tee & Another[20]. This is a broad relevance based test and is derived from the following passage from the judgment of Jowitt J in R v Melvin[21]:

“I would judge to be material in the realm of disclosure that which can be seen on a sensible appraisal by the prosecution: (1) to be relevant or possibly relevant to an issue in the case; (2) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use; (3) to hold out a real (as opposed to a fanciful) prospect of providing a lead on evidence which goes to (1) or (2).”

98.  This test has been replaced in England and Wales by a narrower statutory test contained in the Criminal Procedure and Investigations Act 1996.  The disclosure obligation imposed on the prosecution by this legislation flows from a regime of primary disclosure by the prosecution and secondary disclosure by the defence and in effect imposes a disclosure duty on the prosecutor in respect of any material which might reasonably be considered capable of undermining the case for the prosecution against the accused, or of assisting the case for the accused.  For want of a better way of describing it, this test can be said to be a more narrow, benefit based test in contrast to the broad, relevance based common law test.  This difference in disclosure tests must always be borne in mind when reading judgments of the English courts, especially the comments of Lord Bingham of Cornhill in H. 

99.  Performance of the disclosure duty rests on the prosecutor.  It is an all-embracing and continuing duty that requires full disclosure of the information or material that comes within the terms and scope of the disclosure test.  It is, therefore, the prosecutor who applies the disclosure test to the information or material in respect of which disclosure is sought and it is the prosecutor who determines whether the information or material is disclosable.  If a defendant disagrees with the prosecutor’s determination he can challenge it before the trial judge.  But no claim of PII arises until it has been determined that the information or material is disclosable.

100.  In respect of the circumstances of the present case, there can be no doubt that the testimony of Mr X was disclosable.  Mr X was present at a key event in the prosecution case.  It must be remembered that what is disclosable under the Hong Kong common law test is not confined only to what is helpful to a defendant but extends to information or material that are relevant or possibly relevant to an issue in the case.  What took place at the Megabox meeting is clearly an issue in the case and so what Mr X could say in relation to that meeting is, at the very least, possibly relevant. 

12.2   The procedure for a PII claim 

101.  Where information or material exists which is disclosable but is information or material in respect of which the executive wishes to make a claim of PII then it falls to the court to adjudicate upon it.  In England and Wales the procedure for adjudication of a PII claim in a criminal trial was laid down in Davis.  How this came about was traced through the cases by Lord Bingham in H, starting with the judgment of the Court of Appeal in R v Ward [22]. Referring to the pre-Ward practice of disclosure being left to the prosecution with very exceptional involvement of the courts, he said:

“20 The shortcomings of this unsatisfactory regime were vividly exposed by the Court of Appeal’s ground-breaking decision in R v Ward [1993] 1 WLR 619, to which reference has already been made. The effect of the judgment was to require the prosecution, if it sought to claim PII for documents helpful to the defence, to give notice of the claim to the defence so that, if necessary, the court could be asked to rule on the legitimacy of the prosecution's asserted claim: see pp 680-681. The procedural implications of this judgment were refined by the Court of Appeal six months later in R v Davis [1993] 1 WLR 613. The court there distinguished between three classes of case: p 617. In the first, comprising most of the cases in which a PII issue arises, the prosecution must give notice to the defence that they are applying for a ruling of the court, and must indicate to the defence at least the category of the material they hold (that is, the broad ground upon which PII is claimed), and the defence must have the opportunity to make representations to the court. There is thus an inter partes hearing conducted in open court with reference to at least the category of the material in question. The second class comprises cases in which the prosecution contend that the public interest would be injured if disclosure were made even of the category of the material. In such cases the prosecution must still notify the defence that an application to the court is to be made, but the category of the material need not be specified: the defence will still have an opportunity to address the court on the procedure to be adopted but the application will be made to the court in the absence of the defendant or anyone representing him. If the court considers that the application falls within the first class, it will order that procedure to be followed. Otherwise it will rule. The third class, described as ‘highly exceptional’, comprises cases where the public interest would be injured even by disclosure that an ex parte application is to be made. In such cases application to the court would be made without notice to the defence. But if the court considers that the case should be treated as falling within the second or the first class, it will so order. The court thus modified to a limited extent the ruling in R v Ward that notice of the making of an application should always be given to the defence: page 618. The test laid down in R v Davis was applied in R v Keane [1994] 1 WLR 746, 750, where the court stressed

‘that ex parte applications are contrary to the general principle of open justice in criminal trials. They were sanctioned in R v Davis [1993] 1 WLR 613 solely to enable the court to discharge its function in testing a claim that public interest immunity or sensitivity justifies non-disclosure of material in the possession of the Crown. Accordingly, the ex parte procedure should not be adopted, save on the application of the Crown and only for that specific purpose.’”[23]

102.  Clearly, the purpose of the Davis procedure is to ensure that a PII claim is adjudicated as openly and transparently as circumstances will allow, that defendants have an opportunity to be heard on it and that the judge makes every effort to ensure that opportunity will be meaningful.

103.  The Davis procedure was set out by Yuen JA in her judgment in Agara, a judgment with which other members of the Court of Appeal agreed.  Although not explicitly endorsing this procedure, there was no criticism of it by any member of the court and it appears to have been adopted as the appropriate procedure for Hong Kong.  It was not challenged before us as being the appropriate procedure and we can see no reason why it should not be the procedure in our jurisdiction for dealing with PII claims.  

104.  It is not disputed that in the present case this procedure was correctly followed by the judge in adjudicating upon the respondent’s PII claim. 

12.3   Making the PII claim

105.  In implementing the Davis procedure the first step is for the claimant to clearly articulate to the court what information or material the claimant wishes to withhold from disclosure.  Having done this, the claimant must then make good its claim that disclosing this information or material would create a real risk of serious prejudice to an important public interest.

106.  In the present case, what was being sought to be withheld from disclosure was the identity and testimony of a person who participated in a law enforcement undercover operation.

107.  In an ex parte hearing, materials were provided to the judge, and to us, in respect of Mr X.  But amongst these materials there was no witness statement from Mr X.  The prosecution took the view that it was not practical to take a witness statement from Mr X because the content of it would inevitably reveal matters which, in the public interest, should not be disclosed.  This might well be a legitimate concern if the statement was to be used only for the purpose of being served on the defence; but it was not.  The statement, initially, would also have been used by the judge to:

(i)  identify precisely what it is that the prosecution did not wish to disclose;

(ii)  determine whether there is a real risk of serious prejudice to an important public interest if disclosure is made to the defence of this information or material;

(iii)  if so, assess whether any, and if so what, measures could be taken by him, to ameliorate the impact of the non-disclosure on the fairness of the trial; and

(iv)  decide whether the applicant could still receive a fair trial.

108.  The failure of the prosecution to take a statement from Mr X and provide it to the judge impacted upon all the purposes set out above for which the judge could have used it.  If the judge had been provided with the statement he could have then considered, with the assistance of the prosecutor, whether a redacted form of it could be served on the defence so that counsel for the applicants would be able to make more meaningful submissions in response to the application rather than submissions based on their assumptions as to the scope and content of Mr X’s likely testimony.  He may well decide that not even a redacted form of the statement can be provided to the defence but, if so, that will be his decision and it will be an informed decision, made after he has become aware of the full extent of what Mr X could say in respect of the Megabox meeting.  The prosecution cannot withhold this knowledge from the judge and the judge must not make decisions without the benefit of such knowledge.

109.  A witness statement should have been obtained, and placed before the judge, and it should have been a comprehensive, detailed and accurate statement. 

12.4   Determining whether disclosure would cause a real risk of serious prejudice to an important public interest

110.  This brings us to the second step in advancing the PII claim, namely the burden on the claimant to satisfy the judge that disclosure would be harmful to the public interest and how this burden is discharged.  In H the form of words that Lord Bingham used was whether it had been shown that there is “a real risk of serious prejudice to an important public interest” as opposed to the phrase most commonly encountered in earlier civil law PII cases of “substantial harm to the public interest”.  We prefer Lord Bingham’s form of words because it is more focused and precise. 

111.  The normal means by which a claimant discharges this burden, where the party claiming PII is an organ of the executive, is to file in support a certificate from the Chief Secretary for Administration explaining why disclosure would be harmful to the public interest.  This was not done in the present case but that is not particularly unusual.  In civil litigation, it appears to always be done but in prosecutions the nature of the information or material is often self-evidently protected by PII, being information or material falling within one of the recognized classes of claims.

112.  The editors of Hong Kong Civil Procedure 2020 Vol.1, at 24/5/34, page 663, describe the position as follows:

“In some criminal cases in which the claim is made, a certificate will not be presented if the claim relates to a document or class of documents for which claims for public interest immunity are routinely made and allowed. However, certificates have been prepared and presented in all civil cases in Hong Kong since 1991 in which the claim for public interest immunity has been made by the Government…”

113.  The legal principles that developed in respect of PII claims distinguished between class claims and contents claims.  Class claims were areas of executive activity that were recognized by the courts as being harmful to the public interest to reveal. 

114.  In R v Lewes Justices, Ex parte Home Secretary, Lord Salmon discussed how harm to the public interest could be proved by a certificate from the executive or by a class claim.  In respect of this latter method of proof, he said:

“…There are also classes of documents and information which for years have been recognized by the law as entitled in the public interest to be immune from disclosure. In such cases the affidavit or certificate of a Minister is hardly necessary. I refer to such documents as Cabinet minutes, minutes of discussions between heads of government departments and dispatches from ambassadors abroad. Although different in nature, any evidence as to the sources from which the police obtain their information has always been recognised by the courts as entitled to the same immunity.”[24]

115.  In D v National Society for the Prevention of Cruelty to Children[25], Lord Simon of Glaisdale explained how the informer class developed:

“ Then the law proceeds to recognize that the public interest in the administration of justice is one facet only of a larger public interest – namely, the maintenance of the Queen’s peace. Another facet is effective policing. But the police can function effectively only if they receive a flow of intelligence about planned crime or its perpetrators. Such intelligence will not be forthcoming unless informants are assured that their identity will not be divulged: see Lord Reid in Conway v. Rimmer [1968] A.C. 910, 953G – 954A. The law therefore recognises here another class of relevant evidence which may – indeed, must – be withheld from forensic investigation – namely, sources of police information: Rex v. Hardy (1794) 24 State Tr. 199, 808; Hennessy v. Wright, 21 Q.B.D. 509, 519; Marks v. Beyfus, 25 Q.B.D. 494.”

116.  Another class that has been recognized by the courts is the techniques employed by law enforcement agencies in the detection and investigation of criminal conduct.[26] Both aspects of these criminal law enforcement class claims are relied upon by the respondent in the present case.[27]

117.  However, the facts of this particular case raise an important issue and that is whether the PII class claim for informers includes persons, whether civilians or law enforcement officers, assisting a law enforcement agency by going into the field and participating in a criminal investigation at the direction of that law enforcement agency.  The criminal investigation will be covert in nature and the person will be playing out his role in an undercover capacity.  He may be deployed to take part in conspiratorial discussions or other on-going forms of activity prior to, or even during, the commission of the crime. 

118.  Whether they are called agents provocateurs, undercover officers, agents of the state or some other term, they will all have one thing in common and that is that they will likely be in possession of relevant information that would satisfy the disclosure test.  We shall refer to such persons as active informers in order to distinguish them, whatever form of assistance they provide, from passive informers who do no more than provide information to a law enforcement agency in circumstances of confidentiality.

119.  If active informers are within this PII class then no further proof is necessary that the public interest would be harmed by disclosure of their identity.  If they do not fall into this class, then the court has to be satisfied, by other means, that revealing the information sought would cause a real risk of serious prejudice to an important public interest.

120.  The answer to this question under Canadian law is still developing.  The judgment of Binnie J, in giving the judgment of the majority in R v Barros,appeared to reflect a clear demarcation between confidential informers and persons who were either material witnesses or acted as an agent provocateur:

“…No protection is afforded to a ‘source’ whose conduct goes beyond the provision of information and acts as an ‘agent provocateur’ or is otherwise a mate­rial witness to the crime. Both the agent provoca­teur and the material witness play an active role in criminal investigations and proceedings that goes beyond ‘tipping’ the police. Once a police informer goes into the ‘field’ and acts as a police agent, the informer privilege is no longer applica­ble to prevent disclosure of his or her identity in respect of the events in which he or she acted as an agent: R. v. Broyles, [1991] 3 S.C.R. 595, at pp. 607-9; R. v. Davies (1982), 1 C.C.C. (3d) 299 (Ont. C.A.), at p. 303; R. v. Babes (2000), 146 C.C.C. (3d) 465 (Ont. C.A.). This does not mean, of course, that the informer loses protection in other cases where he or she has not stepped out of the protected role.”[28]

121.  Yet, in Named Person v Vancouver Sun, Bastarache J, in giving the judgment of the majority of the Canadian Supreme Court, said:

“…As already noted, the only real exception to the informer privilege rule is the innocence at stake exception: Leipert. All other purported exceptions to the rule are either applications of the innocence at stake exception or else examples of situations in which the privilege does not apply. For example, situations in which the informer is a material witness to a crime fall within the innocence at stake exception: R v Scott, [1990] 3 S.C.R. 979, at p. 996. The privilege does not apply to an individual whose role extends beyond that of an informer to being an agent provocateur: R v Davies (1982) 1 C.C.C. (3d) 299 (Ont. C.A): Hubbard, Magotiaux and Duncan, at p.2-28.”[29]

122.  These comments of Bastarache J would appear to suggest that a material witness is within the informer class, but that he may lose his immunity under the innocence at stake exception, but that an agent provocateur is not.  We say that because the innocence at stake exception only operates once a person is accorded the status of informer.  Of course, calling a person an informer does not make him an informer; it will be for the court to decide whether he should be accorded informer status.  However, the distinction drawn by Bastarache J emphasises the care that must be taken not to confuse the issue of whether a person should be accorded informer status, with the issue of whether the informer immunity he possesses has been displaced by the innocence at stake exception.

123.  In R v Lising, Bennett JA, in giving a judgment with which the other members of the British Columbia Court of Appeal agreed, set out his understanding of the state of Canadian Law:

“ An informant is someone who provides the police with information: R. v. Babes (2000), 146 C.C.C. (3d) 465, 161 O.A.C. 386 at para. 10. The informant has been referred to as a ‘tipster’: R. v. Khela (1991), 68 C.C.C. (3d) 81 at 93 (Que. C.A.). The informant is guaranteed confidentiality in exchange for providing the police with useful information: R. v. Basi, 2009 SCC 52 at para. 36.

An agent, on the other hand, is not protected by informer privilege: Khela at 87; R. v. Scott, [1990] 3 S.C.R. 979. The agent is asked by the police to play an active role in the investigation. By entering the field and actively participating in the investigation, the agent has waived any privilege held as an informant: Babes at paras. 30, 45; R. v. Davies (1982), 1 C.C.C. (3d) 299, 31 C.R. (3d) 88 at para. 1.

I would make a further distinction between an ‘agent’ and an ‘agent provocateur’. The agent provocateur is a person who has ‘incited, procured or commissioned the perpetration of any crime’ (see Williams and O’Hare v. DPP, [1993] Crim.L.R. 775). It is not suggested that Plante was an agent provocateur.

The decision of whether a person is an informant or an agent is a question of law to be determined by the court, not by the police or the Crown: Davies at para. 11. If the person is an informant, then the court has no discretion to go behind the informer privilege unless the accused's innocence is at stake: Basi at para. 39, Khela at 87.

Thus, the major distinctions between an informant and an agent are:

i) The informant provides information only, whereas the agent goes into the field and participates in the investigation at the direction of the police.

ii) The identity of the informant is protected by a privilege which is almost absolute. It is subject only to the innocence at stake exception. The agent has no such protection and his or her identity must be revealed to the defence.

iii) The informant will not testify in any proceedings. The agent will often testify.

iv) An informant may become an agent for the purpose of some investigations, but maintain informant privilege with respect to other investigations: Babes (G.) at para. 29.”[30]

124.  We agree that the question whether a person falls within the informer class is a question of law that must be determined by the court adjudicating the PII claim.  Key considerations will be the nature of the assistance provided, whether that assistance was provided in confidence and whether that assistance was provided on the assurance that the person would not have to testify and that his identity and the assistance he provided would not be revealed.  The potential for harm to befall the person, and/or those close to him should his assistance become known, would add credibility to a claim that the person only rendered assistance and exposed himself to such harm because an assurance had been given to him that his identity would never be revealed.[31]

125.  Active informers will not necessarily possess the shield of confidentiality, and the benefit of anonymity that the shield provides, that is invariably possessed by passive informers.  Furthermore, the involvement of an active informer in a law enforcement investigation can range from activity on the periphery of the crime or in relation to only collateral matters to activity that is a key part of the criminal offence.  Whether, in a particular case, it creates a real risk of serious prejudice to an important public interest to disclose the active informer’s identity will be such a fact sensitive issue that it would not be appropriate to accord such persons the benefit of a class claim and the automatic blanket protection that goes with it.  For all these reasons, it is unlikely, in our view, that active informers are members of the PII informer class.

126.  Nor would we be minded, without hearing argument on the matter, to extend the PII informer class to include active informers or to create an entirely new class for such persons.  We are conscious of Lord Slynn of Hadley’s comment in the Chief Constable of West Midlands Police that “Class claims may sometimes have been pushed too far”[32] and Lord Woolf’s comment that:

“The recognition of a new class-based public interest immunity requires clear and compelling evidence that it is necessary.”[33]

127.  When information, documents or other materials do not fall into a particular class then they must be judged on the basis of a contents claim.  In the Lewes Justices case,Lord Simon, after referring to sources of police information as falling “into a class the exclusion of which has already received judicial recognition”, continued by saying:

“But the evidence may fall into a class which has not previously received judicial recognition; or it may be questionably of a previously recognised class; or it may fall outside any class of evidence which should be excluded in the public interest, yet still itself as an individual item be excluded in the public interest.”[34]

128.  In the Chief Constable of West Midlands Police case, Lord Templeman suggested that the use of a simple test in all cases would render less significant the concept of class claims.  He said:

“If public interest immunity is approached by every litigant on the basis that a relevant and material document must be disclosed unless the disclosure will cause substantial harm to the public interest, the distinction between a class claim and a contents claim loses much of its significance.”[35]

129.  In these circumstances, we are more inclined to treat active informers as one would a contents based claim, and on a case by case basis examine why it is said the disclosure sought poses a real risk of serious prejudice to an important public interest, and then reach a conclusion confined only to the activities of the particular active informer under consideration within the circumstances of the particular case in which he was involved.

130.  We note that in Turner, Lord Taylor of Gosforth CJ recognised that there existed a distinction between a confidential informant and an agent provocateur, but that the latter may still need, and be entitled to, the protection afforded by PII, saying:

“Clearly, there is a distinction between cases in which the circumstances raise no reasonable possibility that information about the informant will bear upon the issues and cases where it will. Again, there will be cases where the informant is an informant and no more; other cases where he may have participated in the events constituting, surrounding, or following the crime. Even when the informant has participated, the judge will need to consider whether his role so impinges on the issue of interest to the defence, present or potential, as to make disclosure necessary.” [36]

131.  In the present case, we have received the benefit of an ex parte hearing with the prosecutor and, on the basis of what transpired at that hearing, we are satisfied that notwithstanding that Mr X is not within the PII class of informer there would, nevertheless, be a real risk of serious prejudice to an important public interest by disclosing his identity.

132.  However, satisfying a court that disclosure would create a real risk of serious prejudice to an important public interest is only the second step in the PII process and does not automatically result in the claim being upheld.  It does however discharge the burden on the claimant to establish the legitimacy of his PII claim. 

12.5   Adjudicating a PII claim in civil litigation

133.  In civil litigation a judge adjudicates a claim of PII by weighing up the competing interests.  This approach derives from the House of Lords decision in Conway v Rimmer[37] whose decision was summarized by Lord Woolf in his judgment in the House of Lords decision in the West Midlands Police case as follows:

“The House, in that case, made it clear that, even though there was objection by the Secretary of State in proper form to the production of the documents, the courts, in the appropriate circumstances, could, if necessary, inspect the documents. It was also entitled to balance the public interest in avoiding harm being done to the nation or the public service as against the public interest that the administration of justice should not be frustrated by the withholding of the production of the documents. If the court came to the conclusion that the public interest in the disclosure of the documents was greater than the public interest in their immunity, then the court could order that the documents be disclosed.”[38]

134.  Lord Woolf refined this by saying[39]:

“Although it is the practice to talk of conflicting public interests this can be misleading. The conflict is more accurately described as being between two different aspects of the public interest. If it is decided that the aspect of the public interest which reflects the requirements of the administration of justice outweighs the aspect of the interest which is against disclosure, then it is the public interest which requires disclosure.”

135.  It is important to note that when he began his discussion of the law of PII, Lord Woolf emphasized that he was dealing with the legal principles of PII as it related to civil proceedings.[40]

136.  In H, Lord Bingham, when dealing with PII in the context of a criminal trial, explained how the law relating to PII had developed primarily through civil cases:

“19. The English law of crown privilege, later public interest immunity (‘PII’), was largely developed in civil cases. This was because, before and even after the Attorney General’s 1981 Guidelines, disclosure was left largely to the judgment of the prosecuting authorities and the prosecution and only exceptionally did the court make any ruling. Thus the defence were commonly unware of what had not been disclosed and there was no judicial decision against which a defendant could appeal.

20. The shortcomings of this unsatisfactory regime were vividly exposed by the Court of Appeal’s ground-breaking decision in R v Ward [1993] 1 WLR 619…”[41]

137.  However, as we shall see in the next section of this judgment, an approach of weighing competing aspects of the public interest is not an appropriate approach for adjudicating a PII claim that is made in a criminal trial.

12.6   Adjudicating a PII claim in a criminal trial

138.  There are a number of aspects of the public interest at play in the criminal justice process.

139.  There is the aspect of the public interest in the effective detection and prevention of crimes before they are committed and the effective detection and investigation of crimes after they have been committed.  There is the aspect of the public interest in having persons charged with serious crimes brought to trial to have their innocence or guilt determined in accordance with the law.  There is the aspect of the public interest that victims of crime should obtain closure to their experience and satisfaction from the criminal justice process through a trial of those who are alleged to be responsible for the harm caused to them.  There is the aspect of the public interest in ensuring that the trial process through which a defendant’s guilt or innocence is determined is a fair process.

140.  These are the aspects of the public interest that are relevant in the present case.  These aspects of the public interest may, at times, compete or conflict with each other, as happens in a PII claim.  When this occurs the court does not balance one aspect of the public interest against the other, determine which is more important and sacrifice the least important.  The court does not do so because when the form of PII being claimed is informer immunity there is no competing public interest more important than it, other than the public interest in a defendant being tried fairly.  This is why the immunity is sometimes said to be absolute. 

141.  This can be seen in Canadian jurisprudence where, in Named Person, Bastarache J said:

“…Outside the innocence at stake exception, the rule’s protection is absolute. No case-by-case weighing of the justification for the privilege is permitted.”[42]

142.  In his judgment in Barros, Binnie J said:

“[35] The courts will enforce the privilege where it is applicable whether it is claimed or not (Bisaillon, at pp. 84 and 88; Basi, at para. 38), and as stated, without the balancing of competing interests that applies to some other forms of privilege such as journalistic privilege, R. v. National Post, 2010 SCC 16, [2010] 1 S.C.R. 477, or public interest privilege generally, Carey v. Ontario, [1986] 2 S.C.R. 637, unless the protection is waived by the informer and the state: Basi, at para. 40; Named Person, at paras. 22-23; Leipert, at paras. 12-15; and Bisaillon, at p.93.

[36] These general principles accommodate the rights of the accused and the interest of society and it is important that this equilibrium be retained.”[43]

143.  Similarly, in the Australian state of New South Wales where, in Cain v Glass (No 2), McHugh JA in the Court of Appeal said:

“The informer rule, however, has one unique characteristic: contrary to the submissions of the appellants, the court does not weigh the public interest in adducing evidence relevant to curial proceedings against the public interest in maintaining a flow of intelligence concerning the commission of crimes…

…

The paramount position of the informer rule produces the result in civil proceedings that the identity of an informer in a criminal case is not admissible in any circumstances…Until the High Court decides to the contrary, however, I think that the courts in the State should continue to apply the rule that no question of weighing competing public interest arises when a claim is made that the name of a police informer should be disclosed. The rule is absolute and is relaxed only ‘where upon the trial or a defendant for a criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence...”[44]

144.  In support of this approach, McHugh JA relied on the statement of Lord Diplock in D v National Society for the Prevention of Cruelty to Children that we quote at [164] of this judgment.

145.  The approach of McHugh JA was subsequently followed by the Court of Criminal Appeal of New South Wales in R v Smith,where it was said, referring to Cain v Glass (No.2) and D v National Society for Prevention of Cruelty to Children:

“There is powerful authority for the proposition that, at common law, when a claim for immunity is made in respect of the identity of a police informer, the court before whom the claim is made does not undertake for itself, afresh, a balancing exercise, weighing one interest against another. The balance has already been struck; it falls on the side of non-disclosure except where, at a criminal trial, disclosure could help show that the accused is not guilty…”[45]

146.  In Haydon v Magistrates Court[46], Doyle CJ of the Supreme Court of South Australia expressed the opinion that “there is a good deal to be said for the view in Smith.”

147.  Nothwithstanding the importance of informer immunity, and its otherwise absolute status, as is made clear by the above authorities, it must ultimately give way to the right to a fair trial, if such right is at risk.  The right to a fair trial, developed at common law and entrenched now as a constitutional right, can never be outweighed in importance by other considerations and cannot be sacrificed no matter how important the material is that is not being disclosed or how great the harm that may be done to other aspects of the public interest.  There is no balancing exercise involved here.  If a fair trial cannot take place without more complete disclosure being made then the judge orders such further disclosure as in his view will secure the fairness of the trial.  If that is too much disclosure for the prosecution then it can choose to discontinue the trial.

148.  In England and Wales, we note that the editors of Archbold 2019 are persuaded that H has changed the approach that should be taken when adjudicating a PII claim in a criminal trial:

“Court’s approach to public interest immunity decisions

It was formerly said that the decision as to whether to order disclosure of material that attracted public interest immunity involved a balancing exercise, weighing the public interest in maintaining the secrecy of the material against the public interest in the administration of justice, which requires that relevant material is available to the parties to the litigation. However, such language no longer seems appropriate in the light of the consideration given to the topic by the House of Lords in R. v. H., above.”[47]

149.  All of these views are consistent with what Stock VP said in Agara:

“2. The first point is that the circumstances in which the disclosure of an informer’s identity in a criminal trial may be justified is an exception – indeed the sole exception – to informer privilege. One does not start from the other end, which is to say one does not start from a presumption that unless it be shown that the public interest considerations otherwise demand, a defendant is entitled to that information.”[48]

150.  Consequently, in Hong Kong no balancing of competing public interests takes place when adjudicating a PII claim in a criminal trial.  The judge cannot disclose the protected information or material unless he concludes that non-disclosure of it would deprive the defendant of his right to a fair trial.

151.  This raises the questions of what is meant by a fair trial and how a judge is to determine whether non-disclosure of the information or material would deprive a defendant of this right.

12.7   A fair trial

152.  Disclosure is, of course, one of the elements of a fair trial. It is an obligation that was developed by the courts to ensure the openness of the trial process and to enhance its fairness by promoting equality of arms between the prosecution and defence.[49] Any reduction in the disclosure obligation may impact adversely on the fairness of the trial and may render the trial, to some degree, imperfect. 

153.  But the courts have been at pains to emphasise that a fair trial is not synonymous with a perfect trial.  An imperfect trial can still be a fair trial.  In Lee Ming Tee[50], Ribeiro PJ, in giving a judgment with which the other members of the court agreed, described the position as follows:

“ In the first place, it is only in very unusual circumstances that a court can properly be satisfied that a fair trial is ‘impossible’. The ‘fairness’ achievable is judged in practical and not absolute terms. As Brennan J pointed out in Jago v District Court of New South Wales (1989) 168 CLR 23 at p.49:

If it be said that judicial measures cannot always secure perfect justice to an accused, we should ask whether the ideal of perfect justice has not sounded in rhetoric rather than in law and whether the legal right of an accused, truly stated, is a right to a trial as fair as the courts can make it. Were it otherwise, trials would be prevented and convictions would be set aside when circumstances outside judicial control impair absolute fairness.

More importantly, the court’s primary endeavour is to ensure that a fair trial takes place, employing the law’s available resources, and not to abort it on the ground that fairness cannot be attained, save as a last resort. To quote Brennan J again:

   A power to ensure a fair trial is not a power to stop a trial before it starts. It is a power to mould the procedures of the trial to avoid or minimise prejudice to either party. (Jago v District Court of New South Wales (1989) 168 CLR 23 at p.46)”

154.  There may often be imperfections arising in a trial from any number of sources.  We can do no better in explanation of how this can happen than by adopting what was said by Brooking J in Jarvie v Magistrates’ Court of Victoria.  In giving a judgment with which the other members of the Supreme Court of Victoria agreed, he said:

“A fair trial according to law does not mean a perfect trial, free from possible detriment or disadvantage of any kind or degree to the accused: Jago v. District Court of New South Wales (1989) 168 C.L.R. 23, especially per Brennan J. at 49-50 and 54; R. v. Glennon (1992) 173 C.L.R. 292, especially per Brennan J. at 325. The possible detriment or disadvantage to which an accused may on occasions be required to submit may result from the misconduct of a third person, like the contempt in Glennon. It may result, not from misconduct, but from the demands made upon a system of law enforcement and criminal justice with limited resources, which make it in practice impossible to bring accused persons to trial without a measure of delay which ideally should be avoided; Jago’s case at 55 per Brennan J. It may result from the rules of criminal procedure, whether the suggested disadvantage flows from the confinement of the accused in the dock or from the subjection of the accused to a trial jointly with others in a case in which a joint trial is allowed in accordance with the applicable principles. It may result from the laws of evidence and be, for example, the danger that, despite an impeccable charge on the limited use to be made of certain evidence for the prosecution, the jury will make a further and impermissible use of it; the law treats the judge’s warning as meeting the danger, but can one be certain that no juror has ever failed to heed the warning? It may, as in the present case, result from the need to give effect to some principle, like that of public interest immunity, which competes with the desideratum that accused persons should not be subjected to any disadvantage in defending themselves against criminal charges.”[51]

155.  This passage gives emphasis to the reality that a fair trial is much more than a theoretical constitutional concept and in order to understand its true meaning it must be placed within the real world in which it operates. As Lord Bingham made plain in H:

“…it is a right to be exercised within the framework of the administration of the criminal law...”[52]

156.  Within the limits of imperfection, the judge must do what he can to ensure that the trial is and, throughout its duration, remains, as fair as he can make it and that it never becomes an unfair trial.  But it must always be remembered that there are wider interests at stake in addition to those of the defendant and it is important not just that the trial be fair but that it take place. 

157.  As we said in HKSAR v Yu Lik Wai William[53]:

“223. The need to ensure that the trial proceeds is because there are other interests at stake. The criminal trial is more than just a contest between state and defendant and more than just a process in which the only interest at stake is that of the defendant. In his now celebrated statement in AG’s Reference (No 3 of 1999) [54] Lord Steyn described the forensic stage of the criminal justice process as involving a triangulation of interests. He said at page 118E-F:

‘…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. …’

224.   Once we accept that there are limitations on what we can achieve but that the interests of justice require us to, nevertheless, do all in the court’s power to ensure a trial takes place, the issue becomes one of examining what can be done, in the words of Brennan J in the Jago case, ‘to mould the procedures of the trial to avoid or minimize prejudice to either party.’[55]”

158.  When persons are charged with serious crimes, the public, and especially those who have been affected by these crimes, expect that the guilt or innocence of the charged person will be resolved through the criminal justice process.  Should the process fail in meeting this expectation, the reputation of the process and the public’s perception of its effectiveness is placed at risk.  The public interest in the trial taking place is, therefore, a very strong one and that is why so much emphasis is placed on the duty of the judge, when faced with a PII claim, to do what he can to maintain the fairness of the trial so that it can continue to completion.

12.8   The “Innocence at Stake” exception

159.  Having found that the material that is the subject of a PII claim is disclosable in accordance with the prosecutor’s common law duty of disclosure, but having also found that to disclose it would create a real risk of serious prejudice to an important public interest, the judge must then decide whether to uphold the claim.  We now turn to the question of how he determines this issue.

160.  At this stage of the proceedings, that is, once a real risk of serious prejudice to an important public interest has been made out, the test for disclosure changes.  It is no longer a test of relevance as, in order to get to this stage, that has already been established.  It is now whether without disclosure of the material the defendant can have a fair trial.

161.  As we have indicated in the preceding section of this judgment, in order to adjudge this, fairness has to be placed in the context of the purpose it serves, namely the opportunity of a defendant to make his defence to the charge for which he is being tried.  Making his defence at a trial is, in the context of the common law and the constitutional rights conferred on a defendant, making his defence in a process in which he enjoys the presumption of innocence, the prosecution bear the burden of proof, the defendant has a right to testify in his defence but cannot be compelled to do so, and the defendant must be acquitted if a reasonable doubt exists as to his guilt.

162.  Within the context of a trial process possessed of these features, the answer to the question of how a judge determines whether, as a consequence of him upholding the PII claim, the defendant can receive a fair trial, is that he will not receive a fair trial if he is denied access to information or material which could enable him to prove his innocence or raise a reasonable doubt as to his guilt.  If this is the answer to the question, as we believe it is, then the test which best assists the judge in reaching this answer is the Agara test.

163.  It is wrong to portray the Agara test as derived solely from Canadian jurisprudence.  It has a long pedigree in English common law. Indeed Leipert asserts its source is Marks v Beyfus.  It can be found repeatedly in English PII cases.  For example, in the Lewes Justices case Lord Simon in the House of Lords said:

“Sources of police information are a judicially recognized class of evidence excluded on the ground of public policy, unless their production is required to establish innocence in a criminal trial (Rex v Hardy, 24State Tr. 199, 808; Hennessy v Wright, 21 QBD 509, 519; Marks v Beyfus, 25 QBD 4941).”[56]

164.  In D v National Society for the Prevention of Cruelty to Children[57], a civil case, Lord Diplock explained the rule of informer immunity and the rationale for it:

“ The public interest which the N.S.P.C.C. relies upon as obliging it to withhold from the plaintiff and from the court itself material that could disclose the identity of the society's informant is analogous to the public interest that is protected by the well established rule of law that the identity of police informers may not be disclosed in a civil action, whether by the process of discovery or by oral evidence at the trial: Marks v. Beyfus (1890) 25 Q.B.D. 494.

The rationale of the rule as it applies to police informers is plain. If their identity were liable to be disclosed in a court of law, these sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime. So the public interest in preserving the anonymity of police informers had to be weighed against the public interest that information which might assist a judicial tribunal to ascertain facts relevant to an issue upon which it is required to adjudicate should be withheld from that tribunal. By the uniform practice of the judges which by the time of Marks v. Beyfus, 25 Q.B.D. 494 had already hardened into a rule of law, the balance has fallen upon the side of non-disclosure except where upon the trial of a defendant for a criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence. In that case, and in that case only, the balance falls upon the side of disclosure.”[58]

165.  Finally, in a criminal context, there is the statement by Lord Taylor CJ in R v Keane[59]:

“If the disputed material may prove the defendant’s innocence or avoid a miscarriage of justice, then the balance comes down resoundingly in favour of disclosing it.”

166.  Thus, by the time of H,the civil and criminal case law was speaking with one voice on the existence of informer immunity as a PII class claim, the importance of informer immunity to the public interest and of informer immunity being subject to one exception only, the innocence at stake exception.

167.  We are satisfied that under both Canadian and English law the Agara exception is, and always has been, the law of Hong Kong and that the Court of Appeal in Agara was doing no more than applying settled law to this aspect of the law of PII.  Nevertheless, the submission of the applicants does raise the further question of what standard a defendant has to meet when adducing evidence to satisfy the innocence at stake exception.  It is to this issue that we now turn.  

12.9   The “Innocence at Stake” test and R v H

168.  There is no doubt that once the prosecution has satisfied the judge that disclosure would create a real risk of serious prejudice to an important public interest, in respect of a disclosure that is sought of the identity of an informer, then the burden passes to the defendant to satisfy the judge that he cannot get a fair trial without disclosure being made because without disclosure of the information his innocence is at stake.  

169.  It is argued by the applicants that Agara, in requiring that the defendant bear a burden of showing that disclosure is necessary, sets the bar too high and that there is a lower standard or less strict one in the judgment of Lord Bingham in H that is at odds with the Canadian jurisprudence from which, it is said, the Agara test is derived.

170.  Given the history of informer immunity in PII law that we have set out, was the law completely changed by the judgment of the House of Lords in H?  We do not think so.  H was concerned primarily with procedure and whether that procedure was human rights compliant.  Lord Bingham explained how the law of disclosure developed and how PII operated in conjunction with it.  When discussing PII he referred to Keane and Turner without making any criticism of them.  After discussing the Strasbourg jurisprudence he proceeded to set out his conclusions and in doing so laid down a series of steps that he said should be followed when dealing with a PII claim.  We shall deal with each in turn.

171.  Lord Bingham started by referring to the prosecutor’s duty of disclosure and commented on how that duty was to be performed:

“35 If material does not weaken the prosecution case or strengthen that of the defendant, there is no requirement to disclose it. For this purpose the parties’ respective cases should not be restrictively analysed. But they must be carefully analysed, to ascertain the specific facts the prosecution seek to establish and the specific grounds on which the charges are resisted. The trial process is not well served if the defence are permitted to make general and unspecified allegations and then seek far-reaching disclosure in the hope that material may turn up to make them good.”[60]

These comments resonate with those made by Lord Templeman in the West Midlands Police case and by Lord Taylor in Turner.

172.  Lord Bingham then dealt with what, procedurally, should happen once a PII claim is made by the prosecution.  The first step is for the judge to have a clear appreciation of what it is that the prosecution do not wish to disclose.

“36 When any issue of derogation from the golden rule of full disclosure comes before it, the court must address a series of questions.

(1) What is the material which the prosecution seek to withhold? This must be considered by the court in detail.”[61]

We have already emphasized that this can only be done through a properly taken witness statement of Mr X which sets out in thorough detail what he can or cannot say.  This is discussed in section 12.3 of this judgment.

173.  The next step is for the judge to confirm that what is sought to be withheld is, in fact, disclosable.

“(2) Is the material such as may weaken the prosecution case or strengthen that of the defence? If No, disclosure should not be ordered. If Yes, full disclosure should (subject to (3), (4) and (5) below) be ordered.”[62]

This calls for the application of the disclosure test but it must be Hong Kong’s common law test, not the English statutory test and this is discussed in section 12.1 of this judgment.

174.  The next step is the determination of whether disclosure would be harmful to the public interest.

“(3) Is there a real risk of serious prejudice to an important public interest (and, if so, what) if full disclosure of the material is ordered? If No, full disclosure should be ordered.”[63]

We have discussed this at section 12.4 of this judgment.

175.  The next two steps concern the obligation on the judge to minimize the extent of the non-disclosure.

“(4) If the answer to (2) and (3) is Yes, can the defendant’s interest be protected without disclosure or disclosure be ordered to an extent or in a way which will give adequate protection to the public interest in question and also afford adequate protection to the interests of the defence?

This question requires the court to consider, with specific reference to the material which the prosecution seek to withhold and the facts of the case and the defence as disclosed, whether the prosecution should formally admit what the defence seek to establish or whether disclosure short of full disclosure may be ordered. …

(5) Do the measures proposed in answer to (4) represent the minimum derogation necessary to protect the public interest in question? If No, the court should order such greater disclosure as will represent the minimum derogation from the golden rule of full disclosure.”[64]

176.  The final step[65] emphasizes the proactive efforts the judge must make to minimize any potential unfairness that might be caused by the proposed “derogation from the golden rule of disclosure”[66].

“(6) If limited disclosure is ordered pursuant to (4) or (5), may the effect be to render the trial process, viewed as a whole, unfair to the defendant? If Yes, then fuller disclosure should be ordered even if this leads or may lead the prosecution to discontinue the proceedings so as to avoid having to make disclosure.”[67]

Here, Lord Bingham is simply directing judges to, at the end of the PII process, stand back and assess whether the trial process remains fair to the defendant.  He makes it clear that the fairness of the trial process cannot be sacrificed even if the judge concludes that disclosure would cause a real risk of serious prejudice to an important public interest.  This is why it is implicit in his approach that the right to a fair trial has primacy over a PII claim and that a weighing of these two matters would be an inappropriate means of resolving the conflict between them.  Because of the primacy of the right to a fair trial it will always be the PII claim that must give way.

177.  Throughout his judgment, Lord Bingham makes no mention of the innocence at stake test.  That is not surprising given that the two questions certified by the Court of Appeal which the House of Lords had to address were:

“1. Are the procedures for dealing with claims for public interest immunity made on behalf of the prosecution in criminal proceedings compliant with article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms?

2. If not, in what way are the procedures deficient and how might the deficiency be remedied?”[68]

178.  All that was said by way of the law of disclosure and the right to a fair trial was necessary for the purpose of answering these certified questions but discussion of the innocence at stake test, and how it should be applied, was not necessary for, or relevant to, this purpose.  Nor is it implicit in his procedural steps that the innocence at stake test no longer has a role to play in the PII claim.  Had Lord Bingham intended to overrule all the previous House of Lords decisions in which the innocence at stake test had been articulated then, we have no doubt, he would have clearly said so.

179.  Furthermore, when Lord Bingham was employing the words “weaken the prosecution case or strengthen that of the defence” he was merely quoting the English statutory disclosure test.  He was not using those words as a description of the standard or level of proof required to be met by a defendant in establishing the innocence at stake exception.  As he nowhere mentioned the innocence at stake exception it is difficult to see how language that is relevant to the disclosure test and which he used in respect of that test can be said to have been intended by him to also apply to a completely different, non-procedural purpose.

180.  If we cannot look to H for assistance in understanding what a defendant must do to demonstrate that his innocence is at stake then the obvious next place to turn is to Canadian jurisprudence, for that is where the term is employed and where it has been the subject of so much high appellate court discussion.

12.10 The “Innocence at Stake” test as applied in Canada

181.  In Leipert, McLachlin J (as McLachlin NPJ then was) traced the innocence at stake exception to the words of Lord Esher, MR in Marks v Beyfus, when he said:

“… the disclosure of the name of the informant is necessary or right in order to shew the prisoner’s innocence.”[69]

182.  The test then became in Canadian jurisprudence:

“In order to raise the ‘innocence at stake” exception to informer privilege, there must be a basis on the evidence for concluding that disclosure of the informer’s identity is necessary to demonstrate the innocence of the accused … mere speculation that the information might assist the defence is insufficient. If speculation sufficed to remove the privilege, little if anything would be left of the protection which the privilege purports to accord.”[70]

183.  What is required of a defendant to bring himself within the exception and the procedure to be followed by the judge in adjudicating upon it was summarized by Abella J in R v Brassington, in giving the judgment of the Supreme Court of Canada:

“[36] The standard for piercing informer privilege – the ‘innocence at stake’ test – is, accordingly, onerous. The test was set out by this Court in McClure. The ‘privilege should be infringed only where core issues going to the guilt of the accused are involved and there is a genuine risk of a wrongful conviction’ (McClure, at para 47). The McClure application is typically made at the close of the Crown’s case so courts only consider piercing informer privilege when strictly necessary (R v Brown, [2002] 2 SCR 185, para 52). There are no other exceptions to informer privilege (Vancouver Sun, at para 28; R v Leipert, [1997] 1 SCR 281). It is ‘not something that allows for weighing on a case-by-case basis the maintenance or scope of the privilege depending on what risks the informer might face’ (Vancouver Sun, at paras 19 and 22).

[37] On a McClure application, the accused seeks to gain access to informer-privileged information through, ordinarily, a two-stage process. The first stage typically takes place in open court, with the accused and all counsel present. At this stage, as a threshold matter, the accused must establish that the privileged information is not available from any other source and that, in light of the Crown’s case, there is no other way for him or her to raise a reasonable doubt. At this stage he or she must also establish an ‘evidentiary basis to conclude that a communication exists that could raise a reasonable doubt as to his guilt.’ (Brown, at para 4).

[38] If such a basis exists, the second stage of the process occurs. At this stage, the trial judge should proceed to ‘examine the communication to determine whether, in fact, it is likely to raise a reasonable doubt’ (Brown, at para 4). Depending on the circumstances of the case, the trial judge may review the information alone, or with the assistance of Crown counsel, or with the assistance of amicus where necessary, in camera (see, generally, Brown; Vancouver Sun, at paras 45-49).”[71]

184.  The first stage test of an “evidentiary basis to conclude that a communication exists that could raise a reasonable doubt as to his guilt” appears to perform a similar role in the application process as the English first step of determining whether the material the subject of the PII claim is disclosable as part of the prosecutor’s common law disclosure duty.  Like the English statutory disclosure test, it requires a potential benefit to flow from the disclosure. 

185.  However, it is the second stage which sets the standard that has to be met for the innocence at stake test.  In this second stage, the judge reviews the material and assesses whether “it is likely to raise a reasonable doubt”.  In McClure, Major J expanded on what was, and was not, “likely to raise a reasonable doubt.”  He said:

“In most cases, this means that, unless the … [privileged material] goes directly to one of the elements of the offence, it will not be sufficient to meet the requirement. Simply providing evidence that advances ancillary attacks on the Crown’s case (eg by impugning the credibility of a Crown witness, or by providing evidence that suggests that some Crown evidence was obtained unconstitutionally) will very seldom be sufficient to meet this requirement.

The trial judge does not have to conclude that the information definitely will raise a reasonable doubt … Instead, the information must likely raise a reasonable doubt.”     

186.  What is important to note in respect of this two stage procedure is that the step in each stage is different.  The first stage is a less strict, lower standard test than that in the second stage.  As Major J explained in giving the judgment of the Supreme Court in R v Brown[72]:

“It is evident that the test in the first stage (could raise a reasonable doubt) is different than that of the second stage (likely to raise a reasonable doubt).”

187.  In the same case, Major J said that the burden on the accused to establish each element of the McClure test was on a balance of probabilities.[73]

12.11  The “Innocence at Stake” test as applied in Australia

188.  Australian courts, which through the common law of PII also have an innocence at stake exception, have tried to craft a practical test which judges could employ to determine whether a defendant had brought himself within the exception.  Brooking J, in Jarvie,set out his view on the matter as follows:

“ It has been said that where the security that is desirable to protect society as a whole competes with the safeguards necessary to ensure individual liberty the balance must tilt down in favour of individual liberty: Alister v R (1984) 154 CLR 404 at 456 per Brennan J.; compare R v Governor of Brixton Prison; Ex parte Osman [1991] 1 WLR 281 at 288 per Mann LJ. How is this to be converted into a practical test where the competition is between the public interest in the anonymity of undercover operatives and the public interest in an accused person's right to a fair trial? No-one would doubt that identity must be disclosed if to refuse to do so would occasion a miscarriage of justice: R v Rankine [1986] 1 QB 861 at 867; R v Governor of Brixton Prison; Ex parte Osman at 290; R v Keane [1994] 1 WLR 746 at 751-752. The proposition is self-evident; but for that very reason it is too general to provide a test of practical use.

In dealing with the identity of informers judges have often used words which might be thought to suggest that identity may be disclosed only where it is shown that disclosure will enable the innocence of the accused to be demonstrated. So Lord Esher MR spoke of disclosure’s being ‘necessary or right in order to shew the prisoner’s innocence’: Marks v Beyfus (1890) 25 QBD 494 at 498. By way of further examples see what was said by Gibbs ACJ in Sankey v Whitlam at 42 (‘necessary to support the defence of an accused person’) and the authorities to which his Honour there referred, including R v Lewes Justices; Ex parte Home Secretary [1973] AC 388 at 407-408 per Lord Simon of Glaisdale (‘required to establish innocence’); Lord Simon’s observation was also cited by Stephen J. in Sankey v Whitlam at 62. But, while the court will no doubt allow the identity of an informer to be disclosed only after the most anxious consideration, the expressions I have cited, and other similar words, were in my view not intended to convey that disclosure is warranted only where it is clear that the result must be to demonstrate that the accused is not guilty. So in Cerrah v R (unreported, Full Court, 6 October 1988), Vincent J, speaking in effect for the court, said:

‘It is, in my view, clear that before what appears to be a legitimate claim against the disclosure of the name of a police informer is rejected, the accused must demonstrate that the evidence is at the very least capable of being, if not likely to be, of some real assistance to him in answering the case made out against him. A speculative possibility of the kind for which the present applicant contends would certainly not suffice.’

I doubt whether this test is significantly different to that mentioned by Wilson and Dawson JJ and Brennan J in Alister v R at 438 and 456 (a likelihood of the obtaining of material substantially useful to the accused). The test laid down by Vincent J is capable of being applied not only on a trial but also in committal proceedings. I would respectfully suggest that the words ‘is at the very least capable of being, if not likely to be, of some real assistance to him’ should be understood as requiring it to be demonstrated that there is good reason to think that disclosure of the informer's identity may be of substantial assistance to the defendant in answering the case against him. I should add that I respectfully doubt whether McHugh JA (as he then was) in Cain v Glass (No 2) (1985) 3 NSWLR 230 intended to lay down any substantially different test to that which I have attempted to formulate.

The fact that there is good reason to think that disclosure of the informer's identity may be of some slight assistance to the defence is not sufficient to outweigh the public interest in non-disclosure. The balancing process accepts that justice, even criminal justice, is not perfect, or even as perfect as human rules can make it. But once it is demonstrated that there is good reason to think that non-disclosure may result in substantial prejudice to the accused, the balance has been shown to incline in his favour and disclosure should be directed.”[74] (Emphasis added)

189.  In Haydon,Doyle CJ also addressed this issue, ultimately favouring the formula of words crafted by Brooking J in Jarvie. Doyle CJ analysed the case law in the following way:

“…What is the question that the court should ask itself about the significance of the material to the defence case? In a case in which the issue is protecting the anonymity of an informant, or protecting information received from an informant, how important must the material in question be to the defence case for the court to conclude that on balance the public interest comes down in favour of disclosure?

An examination of the authorities reveals that different judges have expressed in different ways the quality or significance that information must have before the public interest will come down on the side of disclosure. In saying that I recognize that the way in which the matter is expressed will be influenced by the nature and strength of the public interest in favour of non-disclosure. In some cases the matter is stated as if disclosure will be ordered only if the material is essential for the successful defence of a charge, or is likely to make the difference between innocence and guilt. That is what one might call the strict approach. In some cases, one finds expressions suggesting that it is sufficient if the material might substantially support a defence case, or might make the difference between innocence and guilt. And then in other cases one finds statements suggesting that it is sufficient for disclosure if the material may be of substantial assistance to the defendant in meeting the case for the prosecution.

It is not necessary for me to review the case law in point. That was done by Brooking J in Jarvie v Magistrates’ Court (Vic) [1995] 1 VR 84. The approach that his Honour took in Jarvie was approved and followed in reasons given by Bleby J in R v Mason (2000) 77 SASR 105 at [36]-[45]. Mullighan J and I agreed with those reasons.

I agree with the observations of Brooking J that the general expressions used in some of the cases should not be taken as intended to be precise assessments of the quality or significance that material must have before disclosure will be required. I am content, with respect, to adopt the approach that Brooking J adopted (the other members of the court agreed) in Jarvie, after his review of the authorities. He said (at 90):

But it seems to me that the overriding need for a fair trial must mean that in no circumstances can the identity of a witness be withheld from a defendant if there is good reason to think that disclosure may be of substantial assistance to the defendant in combating the case for the prosecution.

Even this statement provides no more than a general guide. It is perhaps helpful to add that the fact disclosure of an informer’s identity, or of information provided, might be of some assistance will not be sufficient. To require disclosure on this basis would be to undervalue the importance of the public interest in non-disclosure…It is also relevant to bear in mind that each case will be different, and one must be careful about converting observations made in a particular context into hard and fast rules. Thus, I respectfully agree with a further observation that Brooking J made in Jarvie (at 91):

There is no reason why, in a strong enough case, the necessary substantial prejudice [to the defendant] could not consist in the inability to gather and use material bearing on the credibility of a witness for the prosecution of some importance where the credibility of that witness was really in question.

To my mind, the important thing is to identify the relevant general principle, and then to do one’s best to apply that general principle to the circumstances of the particular case. Finally, on this aspect of the matter, I mention that the approach taken by Brooking JA in Jarvie was followed by the Court of Criminal Appeal of New South Wales in R v Meissner (1994) 76 A Crim R 81. Jarvie was not referred to by that Court in Smith.”[75]

12.12  The “Innocence at Stake” test: A standard for Hong Kong

190.  As previously mentioned, the applicants argue that requiring a defendant to bear a burden of showing that disclosure is “necessary” is setting a standard for him that is too high.  However, as important as it is to not set the standard unrealistically high, it is also important not to set the standard too low, otherwise the existence of the class is undermined.  This point was made by Lord Woolf in the West Midlands Police case when discussing whether a court should overrule a class claim. He said[76]:

“…The indiscriminate and, indeed, any disclosure, of documents which are the subject of a class claim to immunity can undermine that class. If the reason for the existence of the class is that those who make the statement should be assured that the statement will not be disclosed, the fact that in some cases they are disclosed undermines the assurance. The assurance can never be absolute because of the residual power of the court to order disclosure in the interest of the administration of justice. However, if the assurance is to have any value the cases where disclosure occurs have to be restricted to situations where this is necessary. Here the court may have to intervene to protect the public interest.”

191.  Requiring that the disclosure reach the level of being “necessary” is also consistent with the language of Marks v Beyfus, the case which is cited as the source of the class claim for informers.  We do not, however, understand Lord Woolf to be articulating a test for trial judges to apply, any more than Lord Esher was in Marks v Beyfus.  They were simply emphasising that there was another public interest that was at stake which requires courts to exercise caution before too readily overruling it.

192.  In the context of a PII claim based on informer immunity, if a defendant is deprived of something which is necessary for him to establish his innocence then he will be deprived of a fair trial.  If he is deprived of something which is relevant to his trial but which is not necessary for him to establish his innocence then his trial may not be absolutely perfect but it will be fair.  But, at the risk of appearing to go around in circles, how does a judge determine what is necessary.

193.  Whether one uses words of the disclosure being of “substantial assistance” in combating the prosecution case or “likely to raise a reasonable doubt”, the task of the judge is to determine not just that there will be a forensic benefit, whether evidential or otherwise, flowing to a defendant from disclosure but that the benefit could have a significant impact on the outcome of the trial. 

194.  The standard is not as high as requiring the judge to find that the undisclosed information or material over which PII is being claimed will prove the innocence of the defendant or even that it will raise a reasonable doubt.

195.  Nor is the standard so low that the judge need only be satisfied that the undisclosed information or material will be of assistance to the defendant.

196.  Of course, it goes without saying, that the assistance the undisclosed information or material can provide must be clear.  If it is not clear and requires the judge to speculate or make assumptions about it then it will not be capable of reaching the threshold needed to satisfy the judge.

197.  In our view, the Australian formula of words, as helpful as it is in describing the quantitative value of the forensic benefit that the undisclosed information or material will provide to a defendant, does not sufficiently convey the requirement that it have a substantial impact on the outcome of the trial for the defendant.  The formula “likely to raise a reasonable doubt” more precisely links the forensic value that the undisclosed information or material must have to its capacity to affect the verdict at the end of the trial.  For that reason we prefer it to the Australian formula.  In reaching this conclusion, we take note that although the court in Agara did not address this specific issue, it did generally favour the Canadian approach to the burden the defendant had to discharge.[77] The Canadian jurisprudence was also followed by the Court of Appeal in Lam Yat Fung with specific reference to, and apparent endorsement of, the Canadian Supreme Court’s judgment in McClure.[78]

12.13  Assessing the importance to the applicants of Mr X’s evidence

198.  We begin our discussion of this section of our judgment by reminding ourselves that an active informer is different from a passive informer because of the potentially relevant evidence he can give but that this very relevance can sometimes be seized upon by defendants and exaggerated in order to cause difficulties to the prosecution and perhaps even a discontinuance of the trial.  It was the exploitation of the existence of an active informer for a tactical benefit that lay behind the comments of Lord Taylor in Turner, when dealing with a PII claim advanced by the prosecution in response to a request for disclosure of details of an informant whom the defence claimed was a participant in the crime.  In this pre-H decision the court applied the balancing of competing public interests test but before doing so issued a cautionary warning which has since become engraved in the minds and hearts of all prosecutors:

“We wish to alert judges to the need to scrutinize applications for disclosure of details about informants with very great care. They will need to be astute to see that assertions of a need to know such details, because they are essential to the running of the defence, are justified. If they are not so justified, then the judge will need to adopt a robust approach in declining to order disclosure.”

199.  Assessing the probative value of Mr X to the defence is difficult for defence counsel and the judge when the prosecution decline to provide a witness statement of Mr X.  This forced the applicants’ counsel to make assumptions as to what Mr X could say.  All that the counsel knew was that Mr X was present at a meeting at which their clients were alleged to have made admissions to robbery; admissions which they denied were made by them.  The only witness who spoke to what transpired at this meeting was PW2 and his claim that the applicants made admissions to having committed the robbery were unsupported by any other evidence. Whether this claim would be supported or contradicted, in part or in whole, by Mr X was unknown.  Also unknown, was what impact the evidence of Mr X’s testimony might have on the credibility of PW2.  

200.  The prosecution, in an effort to downplay the forensic value of Mr X, argue that his evidence is only relied upon to attack the credibility of PW2 and does not, therefore, come anywhere close to being within the innocence at stake exception.

201.  We do not agree with the reasoning behind this submission.  When courts devalue the forensic utility of evidence by describing it as going “merely to credibility” it is because the evidence has very limited or no relevance to the core issues in the case.  The relevance of the evidence is only to the credibility of the witness, will usually arise from a collateral matter, may only go to a peripheral aspect of the witness’s testimony, and may only impact on his credibility in a limited way.

202.  There are two problems with the respondent’s argument.  Firstly, it assumes that if there are three eyewitnesses to a crime, the first witness called is the eyewitness and the other two witnesses are merely witnesses whose evidence goes only to the credibility of the first witness.  This, with respect, is fundamentally wrong.  Every eyewitness may have a slightly or even very, different account of what they saw, heard or experienced.  That is the perfectly natural consequence of the human condition.  Where there are different accounts of the same event it falls to the jury to determine where, in its view, the truth lies – a task that may indeed involve an assessment of the credibility of each witness and their testimony but that does not mean that each is any less of an eyewitness to the events to which they testify.

203.  Secondly, it assumes that credibility evidence can never satisfy the test of “likely to raise a reasonable doubt”.  It clearly can and this case is a prime example of it.  Given PW2 was the only source of evidence implicating the applicants in the admissions to robbery, if Mr X could give evidence destructive of PW2’s credibility then that would be evidence, vis-à-vis the robbery charge, that was “likely to raise a reasonable doubt”.  We note that both Brooking J in Jarvie and Doyle CJ in Haydon accepted that credibility evidence could, in certain circumstances, meet the test which they favoured for determining the innocence at stake exception.  We also note the clear statement by the Court of Final Appeal in Lee Ming Tee that material going to the credit of a witness is disclosable.[79]

204.  In order to properly determine whether the applicants have brought themselves within the innocence at stake exception a witness statement must be taken from Mr X and, as we have said, it must be comprehensive, detailed and accurate.  Only when a judge has this statement will he be in a position to assess the value of Mr X’s testimony to the defence case in order to reach a conclusion on whether its importance to the defence is such that it can be fairly said that without it the applicants’ innocence is at stake and they would be denied their right to a fair trial.

12.14  The consequence of finding the PII claim established

205.  If the judge is satisfied that disclosure would cause a real risk of serious prejudice to an important public interest, either because the claim falls within a particular class or, where it does not, because of the information provided to him by certificate or otherwise, but the judge is not satisfied that the defendant has brought himself within the innocence at stake exception, then the judge must proceed to determine the following:

(i)  what impact, if any, will the non-disclosure have on the fairness of the trial; and

(ii)  if there is an impact, what steps, if any, can be taken to ameliorate that impact on the fairness of the trial.

206.  Hence, the obligation on the judge and the prosecutor, when there is going to be less than full compliance with the prosecutor’s common law disclosure obligation, to come up with and implement such measures as will ameliorate the effect of the incomplete disclosure on the fairness of the trial process.  This is what lies behind the comments of Lord Bingham in H when he said:

“… some derogation from the golden rule of full disclosure may be justified but such derogation must always be the minimum derogation necessary to protect the public interest in question and must never imperil the overall fairness of the trial.”[80]

207.  There is nothing startling about these duties as a judge always has a responsibility to ensure that the trial over which he presides is fair and where he makes orders that can impact upon that fairness he must try and find ways to lessen any unfairness caused.  Thereafter, for the duration of the trial, he must keep under review the fairness of the trial.

208.  We are invited by the respondent to comment on the Canadian approach of leaving to the end of the prosecution case the determination of whether the defendant has brought himself within the innocence at stake exception.  We can well understand that by that stage the judge will have a more complete grasp of what is in issue in the case, how the defence is being presented and what is of importance to the defence.  But given the continuing duty of the judge to keep under review the fairness of the trial he will no doubt review any earlier decision he had made at the close of the prosecution case.  It seems to us that it would be desirable to ventilate all the issues relating to the claim of PII before the trial starts.  If the judge is able to confidently determine at that stage that a defendant cannot receive a fair trial without the disclosable information then it is desirable for him to say so in order that the parties may know where they stand.  If his determination is unfavourable to the defendant then he can review it at any stage in the course of the trial.

209.  In the present case the question of whether anything could be done to ameliorate the effect of the non-disclosure on the fairness of the trial was not really addressed.  It should have been.  Any consideration of this issue might well have resulted in a conclusion that nothing could be done but it would certainly have highlighted for the judge the difficulties he faced in adjudicating the PII claim without a complete and detailed statement from Mr X.

13     D4’s appeal

210.  D4 complained that the judge failed to fairly and properly sum up his case to the jury.

211.  Before we address this ground, we should briefly note that at trial the four applicants presented a united front in challenging the prosecution evidence when separately contesting the case alleged against each of them.  D1, D2 and D3 were contesting the offence of robbery, with handling stolen goods as an alternative offence, while D4 was contesting the offence of handling stolen goods only. 

212.  None of the applicants gave evidence, nor called evidence on their behalf.  The reason why we mention this is because each of the defence cases were essentially presented through the cross-examination of witnesses, except for D3 and D4 who also had before the jury their respective video record of interview.

213.  Mr Parry complained that the judge failed to direct the jury on D4’s case.  He submitted that D4’s case was as stated by him in his video record of interview that he thought the backpack, given to him by D1 to hold, contained the D1’s clothes and he did not know there were diamonds inside.  He also complained that the judge failed to remind the jury that even if D4 knew the backpack contained diamonds they still had to be sure that he knew the diamonds were stolen.  He finally complained that the judge did not direct the jury’s attention to PW1’s cross-examination when addressing the issue of whether the diamonds from the backpack were stolen goods.  He specifically referred to the cross-examination of PW1 as to the quantity of diamonds PW1 claimed he was carrying; PW1’s ability to recognise the diamonds recovered as belonging to him; and PW1’s initial failure to tell the police that about 500 carats of diamonds were missing.

214.  The judge in his summing-up to the jury addressed in precise detail the offences the four applicants faced.[81] He directed the jury in relation to the elements of robbery that D1, D2 and D3 faced, which was the first count on the indictment, and noted that they also faced as a statutory alternative the offence of handling of stolen goods.  He then directed the jury in relation to the elements of the offence of handling stolen goods, which was the second count on the indictment, and only laid against D4.[82] 

215.  In a very comprehensive explanation of the ingredients of the offence of handling stolen goods, the judge carefully took the jury through the elements of the offence with appropriate reference to the case for and against D4.  He explained to the jury the elements of the offence that a person handles stolen goods, if knowing or believing them to be stolen goods, he dishonestly undertakes or assists in the retention, removal, disposal or realisation by or for the benefit of another or if he arranges to do so. When discussing the first element that the goods had to be stolen, he said that if they were not sure that the diamonds displayed and recovered at the 11 May meeting were the goods stolen at the robbery on 18 March 2016, then D4 could not be guilty of the second count.  He next discussed the element of assisting in the disposal or realisation of the stolen goods by or for another person, where he told the jury that the question was whether D4 assisted D1 in the disposal or realisation of the diamonds by bringing them to the hotel.  He then went on to discuss the element of dishonesty and finally emphasised to the jury the element of knowing or believing the goods were stolen.  He told the jury that it would not be easy to have direct evidence of a particular person’s knowledge or belief but they could decide the issue by considering all the circumstances and drawing an inference from the established facts.  On the drawing of inferences, he reminded them of what he had said about this subject earlier, and emphasised that the prosecution had to prove each of the ingredients of the offence so that they were sure.

216.  The judge made it abundantly clear to the jury that before they could convict D4 of the offence of handling stolen goods they had to be sure, amongst other things, that D4 knew that there were diamonds in the backpack and that they were the diamonds stolen as a result of the robbery on 18 March 2016. 

217.  There was absolutely no substance to the complaint that the judge did not remind the jury that they had to be sure that D4 knew the diamonds were stolen, and accordingly we had no hesitation in rejecting it.

218.  After directing the jury on the elements of the offences, the judge embarked on a comprehensive overview of the evidence, which  included a detailed summary of the contents of D4’s video record of interview.[83] We therefore found it difficult to understand how there could be any justification that the judge failed to remind the jury of D4’s case as reflected by what he said in his video record of interview. 

219.  D4 had been arrested outside the New World Millennium hotel after he had delivered the bag containing the diamonds to D1, who then took the bag to the hotel room.  The judge took the jury through the interview, but before doing so he explained to them that whilst D4 admitted to handling the rucksack which contained the diamonds, he had also given the following explanation, which he said was important for them to consider.  The judge noted that D4 said that D1 was his friend, who had given him a bag the day before his arrest to hold as he was going somewhere.  D1 told him that there were clothes inside the bag, a shirt and trousers.  D4 said that D1 telephoned him to bring him the bag.  D4 said the bag did not weigh very much because he was told it contained a shirt and trousers.  D4 said he did not look to see what was inside the bag.  The judge noted that there were some questions which D4 did not wish to answer, and he accordingly directed the jury that that was his right and that they should not hold it against him.  The judge finally noted that D4 gave a series of denials of having any knowledge about the robbery case.

220.  D4’s case was contained in the answers he gave in his video record of interview, which were fairly and fully summarised to the jury by the judge.  So it beggars belief how can it be said that the judge did not remind the jury of D4’s case. 

221.  It is complained by Mr Parry that in the following italicised paragraph, the judge did not sufficiently summarise D4’s case and the evidence in support of it. 

“Now, regarding the 4^th defendant, prosecution relies on the fact that on 11 May the defendant met the 1^st defendant outside the New World Millennium hotel. The 4^th defendant was in possession of the rucksack containing the diamonds and gave the rucksack to the 1^st defendant in the lobby. He walked back out and met the 3^rd defendant. The prosecution submitted that there was no lock on the rucksack.

In the video-recorded interview, the 4^th defendant said that the 1^st defendant gave the rucksack to him the day before; the rucksack had diamonds inside. So, submit the prosecution, there was plenty of opportunity for the 4^th defendant to inspect the rucksack and they relied on the fact that the 4^th defendant had possession of the diamonds some 54 days after the robbery.

And the prosecution asks this question: would the 1^st defendant just entrust the diamonds to the 4^th defendant without warning him what is inside? That is the question posed by the prosecution, and the prosecution ask you to take into account that the 4^th defendant was left alone to look after the rucksack, so would the 1^st defendant have entrusted him with the diamonds without him knowing what is the valuable objects inside the rucksack?

Now, the contrary argument by Mrs Panesar on behalf of the 4^th defendant is that the best way, perhaps, to protect the diamonds is to not tell the 4^th defendant the fact that the diamonds are inside the rucksack. That is the defence perspective on the position of the 4^th defendant.”[84] (Emphasis added)

222.  Mr Parry specifically complained that the judge omitted to mention the contents of D4’s video record of interview, the evidence proving or disproving his knowledge of the diamonds having been stolen, and PW1’s cross-examination, which he said were vital reference points to the jury for assessing D4’s case.  It is quite obvious at this stage of the summing-up that the judge was addressing the prosecution suggestion that D1 would not have entrusted D4 with the bag of diamonds unless he told him what was inside, and in doing so, very fairly put in juxtaposition the defence suggestion that D4 was not told what was inside the bag in order to protect the diamonds.[85] 

223.  This complaint about the judge’s failure to mention D4’s case in the quoted passage was devoid of merit, as it looked at the judge’s comments completely out of context.  Not only were the judge’s comments directed to a specific issue but, immediately after this passage, the judge went on to discuss the offence of handling stolen goods in relation to the other applicants, noting that the defence case was that the jury could not be sure that the recovered diamonds were stolen items from the robbery.  He added that they should consider the evidence of PW1 and whether they were satisfied he had correctly identified the recovered diamonds as part of the stolen diamonds.  He further added that the defence case was that the jury could not be sure the applicants knew or believed that the diamonds were stolen goods.  He said in relation to D4, “he says you cannot even be sure that he knew there were diamonds inside the rucksack.  Of course, if he did not know, then he cannot be guilty of the offence of handling stolen goods.”[86]

224.  In any event, the judge mentioned the matters that Mr Parry said he omitted when discussing aspects of the prosecution case[87] or when he was addressing the contents of the video record of interview[88] or the evidence of PW1.[89]

225.  As for the evidence of PW1, the judge reminded the jury of the defence challenge to PW1’s evidence, highlighting to them the very points that are now being argued were not brought to the jury’s attention.  The judge specifically mentioned to them that PW1 had been cross-examined on the quantity of diamonds he claimed he was carrying, his ability to recognise the diamonds recovered as belonging to him, and his failure to tell the police that about half of the diamonds were missing.  It was a central plank of the defence cases that it could not be established that the diamonds recovered were from the robbery.  As we have already pointed out, the judge made this point in relation to D4’s case as well as for the cases of the other applicants.

226.  This appeal against conviction rested on a sole ground which was bereft of merit.  We accordingly refused D4 leave to appeal against conviction and dismissed the appeal.

14.     Disposition

227.  For these reasons we allowed the applications for leave to appeal of D1, D2 and D3, quashed their convictions and ordered that they be retried on a fresh indictment and refused D4’s application for leave to appeal and dismissed his appeal. 

[1] (1993) 97 Cr App R 110

[2] [2014] 2 HKLRD 648

[3] [1994] Crim. L.R. 279. The judgment can, in fact, be found at [1993] Lexis Citation 4018.

[4] [2015] 4 HKLRD 679

[5] These were the directions of the judge at pages 51M – 52L of the Appeal Bundle.

[6] [1997] 1 SCR 281.

[7]  [2004] 2 AC 134

[8] Appeal Bundle, page 115K – L.

[9] Appeal Bundle, pages 114T – 115A.

[10] CACC 78/1999, unreported, 20 July 2001, at [85]. An incomplete report of this judgment can be found at [2001] 3 HKC 531.

[11] [2011] 5 HKLRD 447

[12] [2015] 4 HKLRD 679, 685 at [15].

[13] 84 OR (3d) 493, [31].

[14] [1995] 1 WLR 264, 267H.

[15] [2001] 1 SCR 445

[16] Appeal Bundle, pages 114T – 115B.

[17] Appeal Bundle, pages 51M-52L.

[18] This is the language of Lord Bingham in H at 155E, [36(3)].  See paragraph 110 of this judgment.

[19] [1995] 1 AC 274, 280 F-H, 281E.  This judgment pre-dated the statutory disclosure test adopted in England and Wales in the Criminal Procedure and Investigations Act 1996 (see [98] of this judgment).

[20] (2003) 6 HKCFAR 336, at [145] and [170]-[171].

[21] Unreported, 20 December 1993.

[22] [1993] 1 WLR 619

[23] R v H [2004] 2 AC 134, 148G-149F.

[24] R v Lewes Justices, Ex parte Home Secretary [1973] AC 388, 412 D-F.  In D v National Society for the Prevention of Cruelty to Children [1978] AC 171, 229 F-G Lord Hailsham of St. Marylebone referred to informer immunity and after citing Marks v Beyfus (1890) 25 QBD 494said:

“The rule relating to the immunity accorded to police informants is in truth much older, so old and so well established, in fact, that it was not and could not be challenged in the instant case before your Lordships.”

[25] [1978] AC 171, 232 F- H.

[26] See Goodwin v Police Constable of Lancashine Constabulary (unrep., The Times, 3 November 1992) [1992] Lexis Citation 2316, where a class claim was sought and secured in respect of a police manual which contained details of police techniques and tactics employed in the area of riot control which was applied by Hartmann J to Immigration Department manuals and standing orders in Chu Woan Chyi & Ors v Director of Immigration [2006] 4 HKLRD 280, 298J – 300H at [77] – [82].

[27] Class claims are not at all unusual in respect of the activities of law enforcement agencies.  Another class is the affirmation made in support of the application for search warrants; see Apple Daily Limited v Commissioner of the ICAC (No 2) [2000] 1 HKLRD 647.

[28] [2011] 3 SCR 368, 387 at [33].

[29] [2007] 3 SCR 253, 271 at [29].

[30] (2010) 337 CCC (3d) 91, 115-116, [37] – [41].

[31] See the discussion by the Ontario Court of Appeal in R v Y (N) (2012) 294 CCC (3d) 313, 352 – 353, [121] – [122] on the importance of confidentiality as a feature distinguishing an informer from a state agent.

[32]   R v Chief Constable of West Midlands Police Ex parte Riley [1995] 1 AC 274, 282H.

[33]   Ibid, at 305E.  In the Lewes Justices case Lord Reid said of class claims:

“Claims for ‘class privilege’ were fully considered by this House in Conway v Rimmer [1968] A.C. 910.  It was made clear that there is a heavy burden of proof on any authority which makes such a claim.  But the possibility of establishing such a claim was not ruled out.”

[34] [1973] AC 388, 407E-F.

[35] [1995] 1 AC 274, 281H.

[36] R v Turner [1995] 1 WLR 264, 267G-H.

[37] [1968] AC 910

[38] R v Chief Constable of West Midlands Police Ex parte Riley [1995] 1 AC 274, 289H – 290B.

[39] Ibid at 298F

[40] Ibid, at 288D.

[41] R v H [2004] 2 AC 134, 148.

[42] [2007] 3 SCR 253, 272 at [30].

[43]  [2011] 3 SCR 368, 388 at [35] – [36].

[44] (1985) 3 NSWLR 230, 246G – 247D.

[45] (1996) 86 A Crim R 308, 311 – 312.

[46] (2001) 87 SASR 448, 455 at [18].

[47] Archbold 2019 at [12-45]. The editors of the 19^th edition of Phipson on Evidence adopt a similar view. At page 817 [23-05] they say:

     “The issue in a criminal trial is thus, whether the documents are in fact relevant to the defence case. If they are not, no problem arises. But if they are, the prosecution will be required to elect between giving disclosure to the defence and abandoning the prosecution. The judge may be required to keep the issue of disclosure under review as the trial proceeds, as the nature of the defence becomes apparent. There is no real ‘balancing’ exercise: once it has been established that the documents may assist the defence, then the balance must come down in favour of disclosure unless the prosecution prefer to abort the prosecution to avoid disclosure. By contrast, in civil cases there is no such absolute rule and it is appropriate to speak of a ‘balancing’ exercise.”

[48] [2014] 2 HKLRD 648, 651 at [2].

[49] See HKSAR v Lee Ming Tee and Another (2003) 6 HKCFAR 336, at [143] where it was said that “The prosecution’s duty of disclosure has its foundation in the right of the defendant to a fair trial.”  This right entailed adequate knowledge of the prosecution’s case and the principle of open justice.  

[50] (2001) 4 HKCFAR 133

[51] [1995] 1 VR 84, 90-91.  Even in Canada where the right to a fair trial is protected under the Canadian Charter of Rights and Freedoms it is recognized that a fair trial is not a perfect trial.  In R v McClure, Major J said:

“…Our system will not tolerate conviction of the innocent. However, an accused’s right to make full answer and defence in our system, while broad, is understandably not perfect. Section 7 of the Charter entitles an accused to a fair hearing but not always to the most favourable procedures that could possibly be imagined (see R v Lyons, [1987] 2 SCR 309, per La Forest J, at p 362).”

[52]  [2004] 2 AC 134, 146A – B, [12].

[53] [2019] 1 HKLRD 1149, 1219-20 at [223] – [224].

[54] [2001] 2 AC 91

[55] (2001) 4 HKCFAR 133 at 151H

[56]  [1973] AC 388, 407H-408A.

[57]  [1978] AC 171, 218C-F.  See also the comment by Lord Simon in his judgment in this case at pages 232H – 233A.

[58] This statement by Lord Diplock is often quoted in New Zealand and Australian cases as the seminal statement on informer immunity.  See, for example the comment by Richardson J, of the New Zealand Court of Appeal, in R v Hughes[58] where he described it as “a contemporary statement of the rule [of informer immunity] and its rationale.”

[59] [1994] 1 WLR 746, 751H-752A.

[60]  [2004] 2 AC 134, 154H – 155B at [35].

[61] Ibid, 155C – D at [36].

[62] Ibid, 155D at [36].

[63]  Ibid, 155D-E at [36].

[64]  Ibid, 155E-H at [36].

[65] There is a seventh step which deals with the continuing role of the judge in monitoring the fairness of the trial as it unfolds.

[66] In H at [14], Lord Bingham, having determined the material that should be disclosed, said “The golden rule is that full disclosure of such material should be made.”

[67]  Ibid, 155H-156A at [36].

[68] R v H [2004] 2 AC 134, 137A-B.

[69] (1890) 25 QBD 494, 498.

[70] R v Leipert [1997] 1 SCR 281, 295-296, [21].

[71] [2018] 2 SCR 617, 634-635, [36]-[38].

[72] [2002] 2 SCR 185, 200, [29].

[73] Ibid, 210 [56].

[74] Jarvie v Magistrates’ Court of Victoria [1995] 1 VR 84, 89 – 90.

[75] Haydon v Magistrates Court (2001) 87 SASR 448, 457 – 458.

[76] R v Chief Constable of West Midlands Police, Ex parte Riley [1995] 1 A.C. 274, 297 D-F.

[77] HKSAR v Agara [2014] 2 HKLRD 648, 665, [51].

[78] HKSAR v Lam Yat Fung Timothy [2015] 4 HKLRD 679, 687, [19].

[79] HKSAR v Lee Ming Tee & Another (2003) 6 HKCFAR 336, 391 at [170]-[171], where it was said that what was disclosable “extends to other significant material which a reasonable jury could regard as tending to shake confidence in the credibility of the witness.”

[80] R v H [2004] 2 AC 134. 148 E-F.

[81] Appeal Bundle, pages 36A–F, 36K – 37G and 39I – 40B.

[82] Appeal Bundle, pages 37B–G and 38B – 39H.

[83] Appeal Bundle, pages 83P – 88B.

[84] Appeal Bundle, pages 114H – 115B.

[85] Appeal Bundle, pages 114P – 115A. 

[86] Appeal Bundle, pages 114H – 115L.

[87] Appeal Bundle, pages 114H – 115L.

[88] Appeal Bundle, pages 83O – 89K.

[89] Appeal Bundle, pages 40H – 44D.