HKSAR v. CHEUNG TSZ WAN

HCCC 391/2019

[2020] HKCFI 1936

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL JURISDICTION

CRIMINAL CASE NO 391 OF 2019

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R E A S O N S   F O R   R U L I N G

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1.  The defendant faces a count of Trafficking in a dangerous drug. She was arrested by the police upon information.

2.  The facts which the prosecution alleged may be briefly stated as follows. The defendant was arrested inside a room of a hotel. Entry into the room was gained by police officers with the assistance of the hotel management. The defendant as well as the dangerous drug in question were found inside the room. The defendant made confession under caution.

3.  The defence sought disclosure of the content of the information which the police had received and also of the time such information was provided to the police. I was given to understand that disclosure had otherwise been completed.

4.  The prosecution refused, mainly for the following two reasons:

(1)  The information was not relevant to the trial; and

(2)  Disclosure of the information might lead to revealing of the identity of the informant.

5.  After hearing submission and consideration of the relevant material, I ruled that no order for further disclosure should be made. These are the reasons for my ruling.

6.  The reasons which the prosecution provided for non‑disclosure were as set out in paragraph 4 above.

7.  Mr Lau for the defence stressed the importance of the duty of the prosecution to make disclosure and highlighted that the defence was not asking for disclosure of the identity of the informer.

8.  Mr Lau said the defendant was entitled to know the circumstances leading to the arrest and to rely on such background information to test the credibility of the prosecution witnesses. Information such as the nature of the dangerous drug, as well as geographical area and time of the criminal activities would have impact of the reasonableness of the police actions and credibility of the witnesses.

9.  It was his submission that as the prosecution had not proved the requested information would reveal the identity of the informer, disclosure should be made. He also submitted that so long as the information was not covered by informer privilege, the prosecution was under the duty to disclose regardless of the probative value the information bears or how inconvenient it would be to disclose.

10.  The leading local authority regarding the duty of disclosure is HKSAR v Lee Ming Tee (No 2)[1] in which the Court of Final Appeal held[2]:

(1)  Prosecution’s duty to disclose relevant material is preceded by a duty to ascertain what relevant material exists;

(2)  Its duty is to disclose to the defence relevant material (including information) which may undermine its case or advance the defence case.

(3)  The duty is not limited to disclosure of admissible evidence.

(4)  Information not itself admissible may lead by a train of inquiry to evidence which is admissible.

(5)  Material which is not admissible may be relevant and useful for cross-examination of a prosecution witness on credit.

11.  The Court of Appeal held in HKSAR v Ip Tsz Yau[3] that disclosure was a continuing exercise, once it became clear that certain material was potentially relevant to the issues before the court such material should be disclosed.

12.  In the context of a case of the present nature, section 57 of the Dangerous Drugs Ordinance[4] which provides for protection of the identity of the informer in particular his name and address must be taken into account.

13.  Mr Marray for the prosecution submitted that if the details of the information supplied to the police and the time of supplying of the information were disclosed it would likely lead implicitly to the discovery of the identity of the informer. Such risk would be particularly high if only a limited number of people would have known information in such detail and at such time and circumstances.

14.  In HKSAR v Agara[5], Stock VP (as Stock NPJ then was) stressed the importance of informer privilege and said:

“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.”[6]

15.  His Lordship referred with agreement to what McLachlin J said in R v Leipert[7]:

“… 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.

… The privilege is a hallowed one and it should be respected scrupulously.”

16.  There was no dispute by both parties as to the legal principles set out in Agara[8].

17.  It was also held in Bisaillon v Keable[9], a Canadian case, that “this rule[10] is subject to only exception, imposed by the need to demonstrate the innocence of an accused person.”

18.  The burden is on the defence to show that the information sought to be disclosed is necessary to demonstrate the innocence of the accused.[11]

19.  It was held in Leipert[12]:

“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 … 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.”[13]

20.  It was also held in R v Ward[14] that:

“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, the judge will need to adopt a robust approach in declining to order disclosure.”[15]

21.  The Court of Appeal in HKSAR v Lam Timothy Yat Fung[16] reiterated that the principles on allowing an exception to informer privilege were as follows:

(1)  unless the relevant information is necessary to demonstrate the innocence of the accused, no disclosure shall be allowed;

(2)  the onus is on the applicant to show that the information is necessary;

(3)  there must be evidence that provides a basis for requiring disclosure;

(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;

(5)  the court should be alert to the danger of a proliferation of unmeritorious applications;

(6)  the court should accord the special role of informer particular weight.

22.  The prosecution produced to the court exclusively a document dated 15 July 2020 prepared by the police. With the above principle in mind, I had perused the document. The content of this document covers the following matters:

(1)  the information which the police received (hereinafter called “the information received”);

(2)  the time and date the information was received;

(3)  the officer who received the information, and his attachment;

(4)  the time the police started to take action upon the information received;

(5)  the time the police started to liaise with the hotel management; and

(6)  result of the liaison with the hotel management; and

(7)  what actions the police had taken (as stated in the document).

23.  In my judgment, irrelevance may not be a solid reason for non‑disclosure of these matters. In any case, matters (6) and (7) are, to my understanding, covered in the statements of relevant prosecution witnesses which had been disclosed.

24.  On the other hand, in the circumstances of the case I was of the view that matters (2)　‑　(5) encroached on the informer’s privilege as the risk that his identity would be revealed was readily perceived. As regards matter (1), I was persuaded by the reasons provided by the prosecution that disclosure of the information might implicitly reveal the identity of the informant.

25.  I had considered whether the exception of innocence at stake should be applied. In the light of the state of play at the time of the hearing I came to the conclusion that disclosure based on this exception was not justified.

26.  I had also considered the suggestion of Mr Lau of redaction so as to minimize or even eliminate the risk concerned. In my judgment, redaction which would be effective in minimizing the risk would leave the remaining part of the information not meaningful at all.

27.  For the reasons mentioned, I was of the view that only the information in the said document relating solely to matters (6) and (7) should be disclosed. The information, however, had already been made known to the defence.

28.  In the circumstances, I made no order for further disclosure.

29.  At the same time, I stressed that this decision was made without prejudice to the general principles governing the duty of the prosecution to disclose and if in future there is material which in the judgment of the prosecution should be disclosed such action should be taken.

30.  Disclosure is a continuing exercise. If situation warrants at a later stage, the issue may be re-visited.