RE KO KIT

CACV 138, 139 & 140/2008

CACV 138/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 138 OF 2008

(ON APPEAL FROM HCAL NO. 45 OF 2008)

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15.  Mr Tso also issued instructions that that his approval was required before the recording of the meeting between Ms Ko and her solicitor could be viewed.  Both the tape and the event log were kept in safe custody.

16.  However, Mr Tso said that he watched the recording of the first part of the meeting and on his instructions both parts of the meeting were transcribed, and a certified translation obtained.  Another chief investigator, Mr Leung, who was Mr Tso’s successor, watched the tape for the purpose, he said, of preparing the present case and he served a copy of it on the first applicant.

The ruling

17.  There is a relatively detailed analysis by the judge.  In it, he cites at length cardinal principles relating to legal professional privilege and its importance.  He cites R v Grant [2006] QB 60 – a case that was decided upon an appeal from a conviction – in which it was held that:

“52.  Acts done by the police, in the course of an investigation which leads in due course to the institution of criminal proceedings, with a view to eavesdropping upon communications of suspected persons which are subject to legal professional privilege are categorically unlawful and at the very least capable of infecting the proceedings as abusive of the court’s process. ….

54.   … we are no doubt but that in general unlawful acts of the kind done in this case, amounting to a deliberate violation of a suspected person’s right to legal professional privilege, are so great an affront to the integrity of the justice system, and therefore the rule of law, that the associated prosecution is rendered abusive and ought not to be countenanced by the court.

….

56.   Where the court is faced with illegal conduct by police or State prosecutors which is so grave as to threaten or undermine the rule of law itself, the court may readily conclude that it will not tolerate, far less endorse, such a state of affairs and so hold that its duty is to stop the case.” (Emphasis added)

18.  He cited as well a judgment of this Court to much the same effect: Secretary for Justice v Shum Chiu and others [2008] 1HKLRD 155.  

19.  He stated, however, that a knowing intrusion on legal professional privilege, although a matter of considerable gravity, was not necessarily conclusive of an application for a stay.  The full circumstances of that intrusion in the context of the case as a whole had to be investigated in order for the court to answer the question whether the conduct so affronted the public conscience that a stay was demanded, remembering that the power to order a stay was one that was to be exercised most sparingly: HKSAR v Lee Ming-tee & Another (2001) 4 HKCFAR 134; and that even where there was a finding of bad faith, such a finding would not necessarily conclude the matter: HKSAR v Lee Ming-tee & Another (2003) 6 HKCFAR 336.

20.  He found as follows:

(1)   that the ICAC had “acted in good faith in carrying out the covert surveillance in which the meeting was recorded”.  In full context, we understand him to be saying by this that the surveillance was not itself mounted in order to catch privileged conversations.  It had for long been running to investigate allegations of bribery and was directed at the office of Ko and not at a solicitor’s office.  In this regard he noted that there was no evidence that lawyers would frequent these particular premises and “the chances of the device picking up conversations protected by LPP was naturally slim”.  (This, we note in passing, contrasts with Grant and with another case drawn to our attention by the applicants, R v Sutherland and others, Nottingham Crown Court 29 January 2002, unreported, a ruling by Newman J, where the police originally set out to intercept privileged conversations.);

(2)   that although it was known that a solicitor was going to visit Ko at the offices, the ICAC did not know that the solicitor was the same one who had visited Ko after her arrest;

(3)   that the ICAC did not know that there was to be a legal consultation, and the instruction to “wait and see” was just in order to find out what was happening.  He accepted the evidence of senior investigator Ng that at the time he gave the instruction to “wait-and-see”, he did not think that the meeting concerned LPP.  He found, however, that once Tse heard Ko tell the solicitor that she did not know Hong Kong law, the ICAC ought to have known that the meeting would involve the giving of legal advice and was therefore privileged and that the continued recording of the meeting and the making of the log entry therefore constituted a deliberate instruction of Ko’s privilege.  He found, however, that the breach was not occasioned by an ulterior intent or motive.  He said that “when PW3 committed a breach he was doing the job assigned to him by his senior officer.  He informed [Mr Ng] about the meeting.  Although [Mr Ng] did not know about the legal consultation at that stage and did not regard the meeting as privileged he still took the initiative to obtain instruction from [Mr Tso] through the chain of command”;

(4)   that an instruction was swiftly given for all ICAC personnel to be withdrawn from the observation post and the covert surveillance as a whole immediately to be terminated.  “This,” said the judge, “was a prudent measure by ICAC to avoid recording any more meeting between any of the defendants and their lawyers”.  This conduct, he held, showed that the ICAC genuinely had no intention of intruding into privileged material; and

(5)   that there was no attempt to conceal the fact of monitoring and recording of the meeting and that the subsequent transcription of the recording was done as part of “the procedure of discovery in preparation of the case for trial”  Here again, some issue was raised in the course of the hearing before us today about a particular summary of the ruling of the evidence given by Mr Simon Ho, to the effect, so the summary ran, that he “watched the tape containing the meeting between D2 and the solicitor for the purpose of preparing the present case in May 2007 after obtaining approval from PW1.”  Mr Chang SC says this was for use at trial.  Mr Lee for the respondent says it was for the purpose of discovery.  The judge would appear to have found the latter.

21.  The judge decided that in all the circumstances he had described “the breach of the LPP of (Ms KO) by the ICAC falls short of being such an affront to public conscience or justice as to justify the proceedings to be permanently stayed.  The application of the defendants is accordingly refused.”

Argument

22.  The applicants emphasize the importance of legal professional privilege.  That is not a contentious issue.  It is said in argument before us that the right is absolute and there have been cited a number of cases to that very effect.  None of those cases was a stay application and they establish the nature and extent of privilege and go to questions such as admissibility.  Nonetheless, in so saying we do not seek in any way to minimise the cardinal importance and fundamental nature of legal professional privilege.

23.  The applicants attack the finding of the judge that the ICAC had acted in good faith.  They say that the evidence disclosed deliberate breaches of legal professional privilege, and that the judge failed to acknowledge that the affront to the public conscience and to the rule of law is not less an affront because of inadequate safeguards or ignorance of the law on the part of a junior officer; and they cite in support of this proposition a statement to that effect in Shum Chiu.  Finally, they say that in the circumstances it is artificial and oppressive to require the applicants to wait to raise the matter upon an appeal in the event that they are convicted: the proceedings should now be stayed.

24.  Although the privilege of the first and third applicants has not been breached, those applicants say that the proceedings ought to be stayed as against them as well because it cannot be known what use has been made, in furtherance of the prosecution, of material that emerged from the privileged conversation.  It is relevant to note that the application by the first and third applicants for a stay was not advanced on the basis that they could not obtain a fair trial, but rather on the basis that a stay in the second applicant’s favour must necessarily enure to their benefit.  It follows that in the event that we were not to grant leave to the second applicant, Ko, on the sole basis upon which the application was run in the District Court, namely, an abuse based upon on affront to the public conscience, there is no issue for this Court to consider whether leave should be granted to the first and third applicants on the basis that, because of the breach of the second applicant’s legal professional privilege, they cannot secure a fair trial.  There is an interesting argument by the first and third applicants based on reasoning in Sutherland, which we would have to address in the event of granting leave to Ko.  It is an argument that would arise because of the respondent’s stand that the tapes were in fact disclosed to all defendants and that no fruit was yielded from the infringement of legal professional privilege.  The contention advanced by Mr Chang SC, and adopted by Mr Cheng Huan SC, is that that cannot avail the respondent because the second applicant’s privilege has never been waived.

The first instance judgment

25.  Hartmann J emphasized, by reference to R v Latif [1996] 1 WLR 104, the fact that the proposed application was from the exercise of a judicial discretion which requires the trial judge to decide whether the abuse has been such as to amount to an affront to the public conscience and requires the criminal proceedings to be stayed; and that it was apparent, in his view, that the District Court judge had taken all relevant factors into account and did so “by having regard to the evidence of all witnesses before him in what it is apparent were fairly exhaustive proceedings.”  He took the view that the issue was not simply whether there was or was not a deliberate breach of privilege or whether there was or was not bad faith, but that the decision of the trial judge was one that required a “nuanced exercise of judicial discretion”.  He expressed the view as well that if the exercise of that discretion was to be challenged, the challenge should be raised “within the confines of the criminal justice process by way of appeal”.

Analysis

26.  The threshold for granting leave is that the court must be satisfied that an arguable case for relief has been shown: see Peter Po Fun Chan v Winnie C.W. Cheung & Another [2008] 1 HKLRD 319.

27.  In most applications for leave to apply for judicial review, that issue, arguability, is the sole issue.  That is, however, not the sole issue in this application for leave.

28.  As we pointed out in Yeung Chun Pong, para [62], it is trite that judicial review is a remedy of last resort and that where another adequate remedy is provided that alternative should, save in the most exceptional circumstances, be used.  In the passages that followed that reminder, we emphasized the public interest in ensuring that charges, once before a court, should be tried and that there was built into the system a prescribed appeal mechanism that did not envisage collateral challenges.  We referred to authorities in other jurisdictions to the same effect, including R v DPP ex p. Kebilene [2000] 2 AC 326, in which it was said that there was a strong presumption against entertaining a judicial review application where the complaint could be raised within the criminal trial and appeal process, and that such satellite litigation should rarely be permitted in the criminal justice system.  We referred as well to R v Liverpool City Justices and The Crown Prosecution Services ex parte Price (1998) 162 JP 766 where it was said that it was only in “a very exceptional case that this court will exercise its supervisory jurisdiction to intervene and quash the decision by the justices in the exercise of their discretion not to stay criminal proceedings for abuse of process.”  See also, to the same effect, Mo Yuk Ping v Secretary for Justice CACV 270 of 2005,  6 September 2005, unreported; and Secretary for Justice v Lee Wai Man and others [1999] 1 HKLRD 572.

29.  This is, in our judgment, not a case that warrants a collateral challenge.  That is not for one moment to detract from any of the principles stated in Shum Chiu, but rather to recognise that there is in cases of breach of legal professional privilege no automatic ‘red card’.  Each case, each breach, must be viewed in the light of its own facts.

30.  What must be recognised in this case is that the trial judge pointed to specific findings of fact which mitigated or mollified such sense of outrage as is naturally evoked when a breach of privilege is occasioned, especially when it is found that those responsible for the breach clearly ought to have known better.  Those factors included, but were not limited to, the swift withdrawal of all personnel and the halt to the covert surveillance.  This is not to say that the judge’s decision was necessarily correct; by which comment we do not, conversely, mean that it was necessarily incorrect.  We do not have before us the very extensive evidence which the judge had.  In the circumstances of this case and given the reasons provided by the judge, a court would, before coming to a conclusion on the matter, have to review the evidence in detail.  In the light of the judge’s careful analysis and in particular in the light of the specific reasons provided by him we could not say, on the face of matters as they presently stand, that the judge was clearly wrong (which, conversely, is not a hint that we are inclined to think he was).  That, we appreciate, is not the threshold test for the granting of leave, but it is in this case a factor in deciding whether this is one of those wholly exceptional instances in which a collateral challenge is justified.  (That, we pause again to emphasise, is not an invitation to parties hereafter to launch collateral challenges wherever they think that there is an arguable case that the trial judge has made a decision in law that is clearly wrong.  It is merely a comment made in the peculiar circumstances of this case in which there has been a breach of legal professional privilege.)  In those circumstances, we are of the view that it would be inappropriate to permit this collateral challenge to proceed.

31.  That, in our judgment, is sufficient to dispose of the appeal. 

32.  There is, however, one further matter that we feel bound briefly to address which is the fact that this is another instance in which the parties have sought to derive encouragement from the decision in Dairy Farm Co. Ltd v Director of Food and Hygiene [2005] 3 HKC 1.  We alluded to that decision in Yeung Chun Pong and we see that the applicants seek somehow to draw comfort from our analysis of Dairy Farm.

33.  We hardly intended by our judgment in Yeung Chun Pong to do any more than to emphasize that Dairy Farm was not to be taken as authority for the proposition that judicial review was appropriate for stopping a prosecution where a court in its reviewing capacity thinks that the prosecution case is weak or that, as intimated in Dairy Farm, someone other than the defendant was more culpable, if culpability there was.  We also took pains in Yeung Chun Pong to point out that none of the authorities, in this jurisdiction and elsewhere, cited in Yeung Chun Pong that emphasized how very exceptional it was to permit a collateral challenge in criminal proceedings was referred to in Dairy Farm.  It may be that we should have engaged in a deeper analysis of that judgment, further to distinguish it.

34.  We have re-read the judgment in Dairy Farm and we note, for example, that one of the matters that appears to have driven that Court to its conclusion was the absence of any reasons given by the magistrate for his refusal to stay the proceedings.  That is not the position in this case.

35.  Furthermore, the Court in Dairy Farm took into account the fact that even up until the appeal the prosecution had “not demonstrated that it is prepared to present its case by giving a full and fair view to the magistrate upon which it would be proper to draw inferences that the pork in question did not come from a Government approved slaughterhouse.”  We have, with respect, some difficulty in understanding that reference because, by the stage of the judicial review, the full facts had been before the trial court, even though they had emerged in cross-examination.  As we read the matter, the prosecution’s stance at the appeal was that the fact that the pork was unstamped was, of itself, conclusive in its favour, despite the (originally undisclosed) evidence that there had been earlier surveillance that had shown nothing amiss.  Whether, in the light of all the evidence which emerged at trial, the fact of absence of a stamp was indeed conclusive was a matter for the trial court to decide.  There was, as we understand the judgment, no attempt by the prosecution witnesses when giving evidence to withhold the fact of the earlier surveillance, and certainly no attempt at the review stage or at the appeal stage of hiding evidence from the court.

36.  Dairy Farm does not, in the event, help the applicants.

Conclusion

37.  Accordingly, these appeals are dismissed.