HKSAR v. AGARA ISAIAH BISHOP

CAC C 354/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 354 OF 2012

(ON APPEAL FROM HCCC NO. 131 OF 2012)

_______________________

_______________________

_______________________

JUDGMENT

_______________________

Hon Stock VP:

1.  I agree with the judgment of Yuen JA but wish to emphasise a few points.

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.

3.  This point is evident from a study of the judgment of McLachlin J in R v Leipert[1] to which Yuen JA refers where it was said, at 293 - , that :

“Connected as it is to the essential effectiveness of the criminal law, informer privilege is broad in scope…. Subject only to the ‘innocence at stake’ exception, the Crown and the court are bound not to reveal the undisclosed informant's identity.

Informer privilege prevents not only disclosure of the name of the informant, but of any information which might implicitly reveal his or her identity. Courts have acknowledged that the smallest details may be sufficient to reveal identity.

…

… In the case at bar [the judge] noted: ‘The privilege is a hallowed one and it should be respected scrupulously.’

…

In Bisaillon v Keable[2].. this Court held ( at p 93):

‘The rule is subject to only one exception, imposed by the need to demonstrate the innocence of an accused person.’” (Emphasis added).

4.  The second point is that the burden is on the defence to show that the information is necessary in order to demonstrate the accused’s innocence.  In this regard, speculation that the information may assist must be resisted as a basis for an invasion of the privilege; a point which echoes that made in Leipert:

“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 informant’s identity is necessary to demonstrate the innocence of the accused. .. In Chiarantano[3], the possibility that the information provided by the informer regarding the arrival of the residents of drugs later found in possession of the accused might conflict with the evidence of the accused was held not to raise a basis for disclosure pursuant to the ‘ innocence at stake’ exception. The court held that the usefulness of the information was speculative and a 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.”[4]

5.  The third point is that judges faced with such applications should be alert to the real danger, to which judicial decisions elsewhere have alluded, that judgments (such as the present), which recognise the sole exception to the privilege, tend to result in a proliferation of unmeritorious applications for disclosure of information about the informer.  So in R v Turner[5] the Lord Chief Justice of England and Wales, Lord Taylor, said:

“Since R v Ward [1993] 1 WLR 619 there has been an increasing tendency for defendants to seek disclosure of informants’ names and roles, alleging that those details are essential to the defence. Defences that the accused has been set up, and allegations of duress, which used at one time to be rare, have multiplied. We wish to alert judges to the need to scrutinise 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. 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 a crime. Even where 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.” (Emphasis added).

6.  The fourth point is the point made by Yuen JA at para 51 below which is the special role of informers in drug-related cases, so that in examining applications for disclosure, that is a factor to be accorded particular weight.  This is emphasised in a passage in Leipert which[6] cites the judgment of Cory J in R v Scott[7] where he “stressed the importance of the rule [against disclosure of information which might identify an informer] in the context of drug investigations:

“The value of informers to police investigations has long been recognised. As long as crimes have been committed, certainly as long as they have been prosecuted, informers have played an important role in the investigation. It may well be true that some informers act for compensation or for self-serving purposes. Whatever their motives, the position of informers is always precarious and their role is fraught with danger.

‘The role of informers in drug-related cases is particularly important and dangerous. Informers often provide the means for the police to gain some knowledge of the workings of drug trafficking operations and networks …. The investigation often will be based upon a relationship of trust between a police officer and the informer, something that may take a long time to establish. Safety, indeed the lives, not only of informers but also of the undercover police officers will depend on the relationship of trust.’” (Emphasis added).

7.  It is likely that it is this last consideration that motivated the legislature to exclude proceedings under the Dangerous Drugs Ordinance from the interests of justice exception in section 57(2) of that Ordinance.  As Yuen JA explains, that exclusion cannot withstand constitutional scrutiny but that does not derogate from the imperative of ensuring in drug trafficking cases especially, that the disclosure of details relating to an informer is not ordered save where the fact and degree of disclosure are shown to be necessary in order for justice to be done to the defendant.

Hon Yuen JA:

8.  On 20 August 2012 the Applicant was convicted by Beeson J sitting with a jury of one charge of trafficking in dangerous drugs, being 196.75 g of methamphetamine hydrochloride (commonly known as “ice”).  The following day he was sentenced to a term of imprisonment of 11 years.  He has applied for leave to appeal against conviction and sentence.

Prosecution case

9.  The prosecution case was that following information given by an informer (“X”) to the police, police officers lay in wait in the vicinity of a convenience store in Pei Ho Street, Shamshuipo.  When the Applicant approached the store, the police intercepted him.  A total of 14 pellets of “ice” were found in 5 separate places on his clothing, as well as 10 empty resealable plastic bags.  It was an agreed fact that the average retail price of the drugs was $151,630. 

Defence case

10.  It was agreed at trial that the 14 pellets of “ice” and the 10 resealable bags were found on the Applicant as described above.  The defence case was that the Applicant had been given the pellets in an envelope the previous night but he did not know that they were dangerous drugs. 

11.  The Applicant’s case was that the previous night he was drinking in Tsimshatsui with a group of fellow Nigerians.  One of them said he had lost an important document.  Another person (“J”) whom the Applicant had seen 3-4 times in the previous 3 months, offered to take the person who had lost the document to a police station to make a report.  Before leaving the group however, “J” casually asked the Applicant to keep a brown envelope for him.  The Applicant agreed to do so. Some 5 hours later however, “J” had still not returned despite many telephone calls from the Applicant trying to contact him.  The Applicant then returned home to the New Territories taking the brown envelope with him. 

12.  According to the Applicant, the next day he spoke to “J” on the telephone, and at about 2:30 pm “J” asked him to bring the brown envelope to him in Shamshuipo. 

13.  After the Applicant left home with the brown envelope, “J” told him on the telephone that it contained uncut gemstones. 

14.  The Applicant then opened the brown envelope and saw some loosely wrapped paper packets.  As a precaution against pickpockets, he put the packets in separate places on his clothing, including inside the cuff of his sweater and inside his socks.  According to him, the 10 resealable bags were not inside the brown envelope and he had no idea how they came to be in a pocket of his jacket.

15.  According to the Applicant, shortly after 5 pm he arrived at Shamshuipo and met up with “J” on Pei Ho Street.  “J” told him he needed to buy something from the convenience store first and went inside.  The Applicant said that it was at that juncture that he was intercepted by the police.  The Applicant did not deny that he had the pellets on him but denied that he knew they were dangerous drugs.  

Applicant’s case on J’s involvement

16.  The Applicant suspected that “J” had given him the drugs so that he, an innocent courier, could be arrested by the police the next day (this has been referred to as “the set-up”).  He suspected that “J” had done so as “J” was from the same state in Nigeria as a person called Emanuel, with whom his wife had had a relationship before marrying him. 

Proceedings at trial

17.  The first 3 prosecution witnesses were police officers who had intercepted the Applicant and arrested him.  They testified that the information about their target (the Applicant) came from Detective Chief Inspector Cowieson’s informer, whom they did not name.  However these officers denied having seen the Applicant walking or conversing with another African man, or talking on the telephone, before they intercepted him. They said their instructions were to stop the Applicant, not to follow him, and they denied deliberately letting another person (who had been with the Applicant) escape.

Application to the judge

18.  On day 2 of the trial, defence counsel made an application to the judge in the absence of the jury for the name of the informer.  The judge was referred to s.57(2) Dangerous Drugs Ordinance Cap. 134.  As will be seen later in this judgment, the application was not dealt with directly. On appeal, the defence is challenging the constitutionality of the section.

Section 57 DDO

19.  This section provides:

“57. Protection of informers

(1) Save as provided in subsection (2) -

(a) no information for an offence under this Ordinance shall be admitted in evidence in any civil or criminal proceeding; and

(b) no witness in any civil or criminal proceeding shall be obliged -

(i) to disclose the name or address of any informer who has given information to the police with respect to an offence under this Ordinance or of any person who has assisted the police in any way with respect to such an offence; or

(ii) to answer any question if the answer thereto would lead, or would tend to lead, to discovery of the name or address of such informer or person,

if, in either case, such informer or person is not himself a witness in such proceeding.

and, if any books, documents or papers which are in evidence or liable to inspection in any civil or criminal proceeding contain an entry in which any such informer or person is named or described or which might lead to his discovery, the court shall cause all such passages to be concealed from view or to be obliterated so far as may be necessary to protect the informer or such person from discovery.

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

Similar provisions

20.  Similar provisions are found in a number of statutes.  However this judgment is to be read as confined to s.57 DDO only as we have not received submissions in relation to any other statutes. 

Common Law position

21.  The restriction on disclosure of the identity of an informer in s.57(2) DDO may be contrasted with the common law position.

Original common law position

22.  The original common law position was stated in Marks v Beyfus (1890) 25 QBD 494.  There the court held that it was a rule of law (as contrasted with a matter of discretion), founded on public policy, that the names of informers should not be disclosed, but the rule should be departed from if “the judge should be of opinion that the disclosure of the name of the informant is necessary or right in order to shew the prisoner’s innocence, then one public policy is in conflict with another public policy, and that which says that an innocent man is not to be condemned when his innocence can be proved is the policy that must prevail” (at 498).

Contrast with s.57 DDO

23.  It will be noticed immediately that the scope of disclosure permitted under s.57(2) DDO is narrower than under the common law.  The statute permits disclosure of the informer’s name if otherwise injustice would be done – but only in other proceedings, not in the proceedings in which a defendant is tried for offences under the DDO.  The narrower scope of disclosure under the statute was recognized by the Court of Appeal in The Queen v Lam Kwok Hung [1989] 2 HKLR 182. 

24.  In Lam, Yang CJ held that “the purpose of s.57 is beyond peradventure to protect the identity of informers for they can and do play a large part in the detection of offences committed in the course of the drug trade” (at 185).  The prohibition of evidence of the information was “absolute” subject to the two exceptions in s.57(2).  In relation to the second exception, the court held that it

“provides and is intended to provide, where the public prosecution concerns drug offences, a much narrower position than that in Marks v Beyfus. In such a prosecution disclosure can only occur if the circumstances, as set out in the first half of the sub-section apply. The second half of sub-s.(2) was clearly envisaged to codify the general common law position but only in respect of proceedings other than those brought under the Dangerous Drugs Ordinance” (at 187).

The effect of that decision was that the prosecution could not be compelled to disclose the informer’s name for the defence to call as a witness. 

Developments in the common law on disclosure where public interest immunity is claimed

25.  In the decade that followed Lam however, a number of cases in England were decided which established judge-made rules governing the court’s approach to the issue of disclosure where public interest immunity is claimed for the protection of the state as well as of informers.

R v Ward

26.  The practice before the case of R v Ward (Judith) (1993) 96 Cr App R 1 was that it was the prosecution which decided whether to disclose materials to the defence, or to maintain non-disclosure on the basis of public interest immunity.  In Ward however the court held that where the prosecution claimed that public interest immunity justified non-disclosure, it was for the court to decide if that claim was justified.  Furthermore the court ruled in Ward that the prosecution must always give notice to the defence of its application to the court for public interest immunity. 

Davies - procedure

27.  The breadth of the ruling in Ward was however tempered by the Court of Appeal in Davies and others (1993) 97 Cr App R 110.  There the Lord Chief Justice held that “open justice requires maximum disclosure and whenever possible the opportunity for the defence to make representations on the basis of fullest information.  However, in regard to public interest immunity in criminal cases, it is implicit that the defence cannot have the fullest information without pre-empting the outcome of the application”.  Accordingly the following 3-step approach was established (at 114):

(1) In general, all unused materials which had some bearing on the offence and the surrounding circumstances of the case should be disclosed.

(2) If the prosecution relied on public interest immunity to justify non-disclosure, it should give notice to the defence that it would be making an application to the court to rule on the matter, indicating at least the category of the material.

(3) If the prosecution considered that even indicating the category of material would be too sensitive, it should nevertheless inform the defence that it would be making an ex parte application to the judge – although there could be instances where the material was so sensitive that the prosecution could not even inform the defence that it was going to make an ex parte application.  In both these instances, the court would decide the prosecution’s claims. 

Turner - approach

28.  It appeared that the effect of the Ward and Davies decisions was that the courts were flooded with large numbers of applications for disclosure of informers’ names and roles. 

29.  In R v Turner [1995] 1 WLR 264, Lord Taylor CJ affirmed the principles set out in R v Keane [1994] 1 WLR 746 and refined the approach to be taken by judges when dealing with such applications. 

30.  He affirmed the principles to be applied by judges as follows (at 267, quoting from Keane):

“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”.

“When the court is seized of the material, the judge has to perform the balancing exercise by having regard on the one hand to the weight of the public interest in non-disclosure. On the other hand, he must consider the importance of the documents to the issues of interest to the defence, present and potential, so far as they have been disclosed to him or he can foresee them”.

31.  He then refined the approach to be taken by judges when deciding applications for disclosure regarding informers (at 267).

“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. 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 an issue of interest to the defence, present or potential, as to make disclosure necessary”. (Emphasis added).

The italicized passage above was particularly relevant in Turner as the information concerning the informer showed his participation in the events concerning the crime, and as the defendant alleged a “set-up” the moment he was arrested by the police. Accordingly disclosure was ordered. 

32.  The passage is also relevant in the case before us, where the defence is that there was a set-up by “J” who had provided the unwitting defendant with the drugs.

Constitutional dimension

33.  It would be noticed that in the cases discussed above, there was no reference to any constitutional dimension. It is relevant now to consider two leading cases in common law jurisdictions discussing the constitutionality of the common law guidelines on dealing with informers.

Canada - R v Leipert

34.  The first is the judgment of the Canadian Supreme Court in R v Leipert [1997] 1 SCR 281.  This was a drugs case.  The police received a tip from a Crime Stoppers Association that the defendant was growing marijuana in his house.  The scent of marijuana was detected by police dogs as well as officers outside the house.  A search was conducted and marijuana was found.  The defendant asserted that, under the Canadian Charter of Rights and Freedoms where he had the right “to make full answer and defence”, he was entitled to the “tip sheet” from the Association. The prosecution refused disclosure on the basis of informer privilege.  The judge read the “tip sheet”, attempted to edit out the references to the identity of the informer, and then ordered disclosure. 

35.  The Supreme Court held that the judge’s decision to redact the “tip sheet” before disclosure was improper and risky because seemingly innocuous details might have been sufficient to identify the informer (at 289).  Accordingly it was necessary to approach the matter from first principles. 

36.  The Court held that “informer privilege is an ancient and hallowed protection which plays a vital role in law enforcement.  It is premised on the duty of all citizens to aid in enforcing the law.  The discharge of this duty carries with it the risk of retribution from those involved in crime.  The rule of informer privilege was developed to protect citizens who assist in law enforcement and to encourage others to do the same” (at 289).  It acknowledged that the rule against disclosure of information which might identify an informer “is of fundamental importance to the workings of a criminal justice system” and “the role of informers in drug-related cases is particularly important and dangerous” (at 289). 

37.  “Informer privilege is subject only to one exception, known as the ‘innocence at stake’ exception” (at 295). To raise this exception, 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” (at 295).  One such basis is where the informer “is a material witness to the crime or acted as an agent provocateur ... Where such a basis is established, the privilege must yield to the principle that a person is not to be condemned when his or her innocence can be proved” (at 296).  (Emphasis added).

38.  The court held that the defendant’s rights under the Charter to a fair trial by making a full answer and defence did not create another exception to the rule of informer privilege because the defendant was sufficiently protected by the “innocence at stake” exception.

39.  As for procedure, the following guidelines were set out by the court:

“First, the accused must show some basis to conclude that without the disclosure sought his or her innocence is at stake. If such a basis is shown, the court may then review the information to determine whether, in fact, the information is necessary to prove the accused’s innocence. If the court concludes that disclosure is necessary, the court should only reveal as much information as is essential to allow proof of innocence. Before disclosing the information to the accused, the Crown should be given the option of staying the proceedings. If the Crown chooses to proceed, disclosure of the information essential to establish innocence may be provided to the accused” (at 301).

40.  It would be seen that

(1) the onus is on the defendant to show that

(2) there is evidence which provides a basis for requiring disclosure

(3) because disclosure is necessary in order to prove his innocence,

(4) and even then, the court should order disclosure of only as much information as is essential to establish innocence.   

In that case, the defendant failed to establish that the informer’s identity was necessary to establish his innocence and his application for disclosure was therefore rejected. 

The U.K. - R v H

41.  The landmark case in the UK where informer privilege was considered in the light of constitutional rights is R v H and others [2004] 2 AC 134.

42.  This was also a drugs case.  The defendants H and C were charged with conspiracy to traffic in heroin.  The defence was that the drugs had been planted in H’s van which he was using to transport timber to C, and that neither H nor C knew anything about the drugs. At a pre-trial hearing, the prosecution sought a ruling as to whether informer material could be withheld on the ground of public interest immunity. 

43.  Without full inquiry into the circumstances, the judge ordered that special counsel, independent of both prosecution and defence, should be appointed at the hearing to avoid a possible violation of article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (as scheduled to the Human Rights Act 1998) which protects the right to a fair trial.

44.  The court of appeal considered that the order appointing special counsel was premature as the judge had not considered the materials which the prosecution was seeking to withhold. 

45.  Two points of law of general public importance were certified for the decision of the House of Lords, namely:

“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?”

46.  Giving the judgment of the Committee, Lord Bingham held:

“Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, ... should be disclosed to the defence. Bitter experience has shown that miscarriages of justice may occur where such material is withheld from disclosure. The golden rule is that full disclosure of such material should be made” (paragraph 14) (Emphasis added).

47.  However his lordship recognized that:

“Circumstances may arise in which material held by the prosecution and tending to undermine the prosecution or assist the defence cannot be disclosed to the defence, fully or even at all, without the risk of serious prejudice to an important public interest. The public interest most regularly engaged is that in the effective investigation and prosecution of serious crime, which may involve resort to informers ... which cannot be disclosed without exposing individuals to the risk of personal injury or jeopardising the success of future operations. In such circumstances 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” (paragraph 18).

48.  Having examined the procedure of appointing a special advocate, with the ethical and practical problems thrown up by such appointments, his lordship held that the procedure should be one of the last resort (paragraph 22).  The appointment of a special advocate was premature in the case under consideration as the judge had not considered the materials which the prosecution was seeking to withhold.      

49.  His lordship held:

“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.

(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.

(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.

(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. This may be done in appropriate cases by the preparation of summaries or extracts of evidence, or the provision of documents in an edited or anonymised form, provided the documents supplied are in each instance approved by the judge. In appropriate cases the appointment of special counsel may be a necessary step to ensure that the contentions of the prosecution are tested and the interests of the defendant protected. ... In cases of exceptional difficulty the court may require the appointment of special counsel to ensure a correct answer to questions (2) and (3) as well as (4).

(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.

(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.

(7) If the answer to (6) when first given is No, does that remain the correct answer as the trial unfolds, evidence is adduced and the defence advanced?

It is important that the answer to (6) should not be treated as a final, once-and-for-all answer but as a provisional answer which the court must keep under review”. (Paragraph 36)

Discussion

50.  It would be seen from the above that courts in other common law jurisdictions have had to grapple with the tension between public interest immunity on the one hand, and on the other the demand of an accused person for disclosure of the informer’s identity.  They have held that common law guidelines provide sufficient protection of a defendant’s constitutional rights to a fair trial, and it is accepted by leading counsel for the Applicant in our case that the constitutionality of the common law rule is not in issue. 

51.  It may be that the procedure in Canada, with its emphasis on disclosing the minimum necessary to a defendant, is less protective of the rights of defendants than in the UK, with its emphasis on the minimum derogation from the golden rule of full disclosure.  Insofar as there may be a difference in practical application between the Canadian procedure and the English one (which there may well not be), it seems to me that in dangerous drugs cases where the stakes are so high that informers’ lives may be put at risk, the public interest would be better served by adopting the Canadian approach which places the burden on the defence to justify the need for disclosure by reference to the evidence, and which permits disclosure of only as much information as is essential to the defendant to establish his innocence.  Be that as it may, both in Canada and the UK, the highest courts have recognized that where a defendant is, in appropriate circumstances, entitled to disclosure of an informer’s identity, he is entitled to it in the actual proceedings where he is prosecuted for an offence, not only in other proceedings.

52.  In my view a blanket refusal to provide disclosure of an informer’s identity – however strong the defence evidence of a “set-up” by the informer and however material the revelation of his identity would be to establishing the innocence of the defendant – is clearly inimical to a defendant’s rights to a fair trial. 

53.  However as noted by this court in Lam (which was decided prior to the Bills of Rights Ordinance), s57(2) DDO only permits disclosure to avoid injustice in other proceedings, not the proceedings brought under the DDO.  It seems to me that, since article 14 of the ICCPR as entrenched by the Basic Law (similar to articles 10 and 11(2) of the Hong Kong Bill of Rights referred to by the defendant’s leading counsel) provides for an individual’s entitlement to a fair hearing and to have adequate facilities for the preparation of his defence, this restriction can no longer stand as it fails the test of constitutionality.

54.  At the end of the hearing we asked for written submissions on whether it would be possible to “read down” s.57(2) so as to make it compliant with article 14 ICCPR or articles 10 and 11(2) BORO.  It has been suggested on behalf of the Secretary for Justice that applying the “blue pencil” test, the unconstitutionality of s.57(2) could be remedied by excising the word “other” before the word “proceedings” so that it would apply to proceedings under the DDO.  However if that is done, thatwould leave two routes to disclosure, one in the first part of s.57(2) where the court is satisfied that the informer willfully made a material statement which he knew or believed to be false or did not believe to be true, andanother in the second part under the “innocence at stake” exception.  The question would then arise whether these were two discrete routes to disclosure, and if so, whether the existence of the first route narrowed down the otherwise general scope of the second route.  At the same time, a judge may well find that the “innocence at stake” exception under the common law was not invoked even though the informer had made a false statement, and in that case, the question would arise whether the court was nevertheless obliged to withdraw the protection enjoyed by the informer.  Further, the continued use of the word “may” in s.57(2) may lead to arguments  whether disclosure is a matter of discretion or a matter of law.  Under the common law position, the judge is required to consider all the circumstances and arrive at a decision, but it is a decision based on law, not made as a matter of discretion (which the word “may” is sometimes used to convey).  Accordingly it seems to me that applying the “blue pencil” test in the way suggested by the Secretary may well present more problems to practitioners and the court.  It seems to me that the striking down of the whole of s.57(2) would be a tidier way of re-establishing the common law position.

Approach taken at the trial

55.  Had these points been made and these authorities referred to the judge, the matter may have proceeded in a different way.  Instead, the approach taken at the trial appeared to be as follows.

56.  The defendant’s counsel made an application for disclosure of the name of the informer, having fully set out the defendant’s case of a “set-up” by the informer and properly referring the court to Lam which he argued should no longer be good law.  The prosecution challenged the relevance of the application. 

57.  The judge did not hear arguments on the constitutionality of s.57(2), was not presented with and therefore did not consider particulars of the information withheld and did not make a ruling on relevance.  What happened was that a compromise was reached.  What falls for decision by this court is whether the compromise was sufficient for this court to apply the proviso. 

58.  The material provided by the prosecution to the defence came about as follows.  First DCI Cowieson said in his evidence that the informer was a black man and lived in the vicinity of Pei Ho Street.  The defence then put it to the DCI that the informer had convictions for drugs and attempting to pervert the course of justice.  The DCI agreed that the informer had criminal convictions but said he did not know the offences for which the informer had been convicted.

59.  What then happened was that, in the absence of the jury, defence counsel made available to prosecuting counsel two judgments showing the name of a person who had been convicted of those offences.  On the same day the prosecution agreed by way of agreed facts that the informer had been convicted of the offences referred to in the judgments provided by defence counsel, as well as an offence of assault, within a specific month in a specific year (which coincided with the dates set out in the judgments, which of course bore the name of that defendant).

60.  Accordingly the defendant when giving evidence actually identified by name the person previously only known to him as “J” and the defence case as presented to the jury that that “J” was indeed the informer.

61.  In light of the above matters, I have been exercised as to whether the proviso should be applied, given that the defence had the above material which enabled him to put a name to the informer, and to establish to the jury that this person had previously been convicted for drugs and attempting to pervert the course of justice.

62.  However on further reflection it seems to me that this would not be an appropriate case to apply the proviso. Insofar as a number of clues were given to the identity of the informer, the prosecution fell short of conceding that the informer was in fact “J”.  Of more concern is that possibly on one reading, DCI Cowieson’s evidence suggested that there was another person in the vicinity. When pressed in cross-examination whether the regular updates he received from the informer just before the arrest showed that he (the informer) must have been in contact with the defendant (thereby inferring that the informer was “J”), the DCI said that the informer could have been in contact with the defendant or persons   “close” to the defendant.  Further to this, the judge in her summing-up to the jury reminded them that when defence counsel suggested that the DCI paid “J” $10,000, “Mr Cowieson did not say that he paid ‘J’ $10,000.  He said he paid the informant that he was dealing with $10,000, or about $10,000”.  In other words,  some clues were given as to whether the informer was the person who the defendant said had “set him up” by giving him the drugs, but it was not conceded by the main prosecution witness, and the judge’s summing up reflected this position.  This is unsatisfactory from the perspective of the defence, and probably also from that of the informer whose privilege it was to be protected unless the law stipulated otherwise.  This is not to say that the applicant was indeed entitled to have the identity of the informer confirmed to him or revealed to the jury. It is only to say that until the question whether he was entitled to that full disclosure is resolved, the application of the proviso is not appropriate.     

Re-trial

63.  It has been held in the cases discussed above that the proper tribunal to decide whether an informer’s identity should be disclosed is the trial judge, having heard both parties’ submissions and considered the material in question in the light of all the circumstances of the case.  In my view, this case does require the decision of the judge on the issue whether the name (or nicknames) of the informer should be disclosed so as to support the defendant’s case of a “set-up” by “J”.  It would not be appropriate for this court to express any further views on the issue at this stage. 

64.  I would therefore allow the application, treat the application as the appeal proper and set aside the conviction.  It follows that it is not necessary to deal with the application regarding sentence.  Leading counsel for the appellant has properly suggested that should the appeal be allowed, there should be a re-trial.  I would agree and order accordingly.

Hon D. Pang J:

65.  I agree with the judgments of Hon Stock VP and Hon Yuen JA.

Hon Stock VP:

66.  Accordingly orders are made in the terms proposed by Yuen JA in para 64 above.  We direct that the trial be listed for hearing within the next three months.