HKSAR v. CHUA SHIRLEY MASIGLA AND OTHERS

HCCC 304/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 304OF 2016

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RULING

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1.  Mr Egan, on behalf of the 1^st defendant, has made an application to exclude the remaining portions of the digital evidence at tab 1, pages 1, 2 and 16 of the Computer Forensics Examination Reports of Mobile Phones and SIM Cards bundle, which I will refer to as the “digital evidence bundle”, which was recovered from her mobile phone, P44. In addition, he seeks to have excluded all the remaining digital evidence contained within the digital evidence bundle which has been extracted from the mobile telephones of D3 and D4, and they include P77, 92, 95 and 96.

2.  There is no digital evidence before the court which has been extracted from the mobile telephone of the 2^nd defendant. D3 and D4 support this application, D2 does not.  Ms Crebbin, on behalf of the 2^nd defendant, wishes to rely upon the evidence within the mobile phone records which she considers are to the benefit of her client.

3.  The basis of Mr Egan’s application is the judgment of Thomas Au J, dated 27 October 2017, in Sham Wing Kan v Commissioner of Police, unreported, HCAL 122/2014, which, at first blush, appears to render unlawful the interrogation without warrant of digital evidence contained within mobile phones seized from an arrested person at the time of their arrest.

4.  In that case, the applicant was searched by the police and five mobile phones were recovered, three of which were retained by the police.  The applicant sought leave to apply for judicial review seeking a declaration that Section 50(6) of the Police Force Ordinance, Cap 232, does not authorise police officers to search without warrant the contents of mobile phones seized upon arrest, or if so authorised, a declaration that Section 50(6) is unconstitutional.  The learned judge found that Section 50(6) authorised a police officer to search the digital contents of a mobile phone, but only in exigent circumstances.

5.  Mr Wright, on behalf of the prosecution, submits that there were exigent circumstances in this case, in respect of all of the mobile phones recovered, because of the extremely serious nature of this case.  The fact that there was approximately 2 kilogrammes of cocaine being distributed within Hong Kong by D3 and D4, and the urgent necessity to track them down before they deliver the drugs.  Therefore he submits, in matters such as these, even upon the arrest of D3 and D4, there were exigent circumstances in seeking to identify those involved as soon as possible.  He submits that the interrogation of the mobile telephones of D3 and D4 were also authorised and not in breach of the defendants’ fundamental rights.  If he is not correct in that regard, he relies upon the common law rule as to the admissibility of relevant evidence, subject to the discretion of the court to exclude it.

6.  I have not had the benefit of the reading the authorities placed before Au J, nor of hearing reasoned arguments upon the point.  The matters before that judge took some five days.  This is a criminal trial, and I do not have the luxury of adjourning this matter for several days for counsel to make full submissions upon the point.  However, having addressed the point with all counsel, it seems that the fairest way forward is to proceed on a best case scenario basis for the defence, which is that the digital evidence in this case was seized unlawfully.  But I stress that I have not come to an independent view upon that issue one way or the other.

7.  But I do proceed on this basis.  The first part of Mr Wright’s submissions, in respect of the mobile phone of the 1^st defendant has some merit.  D1 and D2 were apprehended at a time when it became clear very quickly that there were four people in this group, and that there was likely to be other cocaine subject to imminent delivery.  In my view, it would have been perfectly proper for the Customs & Excise to seek to interrogate the digital data carried by either D1 or D2 in order to stop that delivery and prevent further harm to the public of Hong Kong, and I rule it admissible and relevant, and find that the interrogation of that digital evidence was lawfully carried out.

8.  If, however, I am wrong in that, I will nevertheless consider that evidence as part of the remainder for the purposes of this application, for that is not the end of the matter, as there is the digital evidence against D3 and D4, also before the court.  And so I will proceed, in order to give the benefit of the doubt to the defence, upon the most restrictive basis for the prosecution which is that Au J is correct in finding that a mobile telephone may not be interrogated without a search warrant.

9.  What, then, is the situation before the court today?

10.  The rule as to the admissibility of unlawfully obtained evidence under the common law in both civil and criminal cases is whether it is relevant to matters in issue.  If it is, it is admissible, and the court is not concerned with how it was obtained.  And for that, I rely on the decisions and other authorities referred to in Kuruma, Son of Kaniu v the Queen [1955] AC 197, R v Sang [1980] AC 402 per Lord Roskill at page 408D and Olmstead v United States [1928] 277 US 438.

11.  Kuruma v the Queen, interestingly, stands on all fours with the case at hand.  Two police officers searched the defendant on suspicion of being in unlawful possession of ammunition, contrary to the Emergency Regulations 1952 of Kenya, without the power to do so under Regulation 29 of the Emergency Regulations, as they were not of the rank of assistant inspector or above.  The recovery of the ammunition by them was evidence which was properly admitted according to the Chief Justice, Lord Goddard.

12.  Has the law moved on from this common law principle such as Mr Egan suggests, that once the interrogation of the evidence is rendered unlawful by reason of a breach of the fundamental rights of the defendant, it is inadmissible.  Although he knows that that is not the case, because Mr Egan in response to the court raising the issue of the common law principle of relevance, relies upon HKSAR v Muhammad Riaz Khan [2012] 15 HKCFAR 232.  He relies upon Khan to suggest that the principles in the line of cases before and after R v Sang should not be followed by this court.  I think perhaps that is an oversimplification, but perhaps by both of us.  Lest my attitude be considered capricious, I will explain.

13.  The Court of Final Appeal in Muhammad Riaz Khan considered whether the court has a discretion to admit or exclude evidence obtained in breach of a defendant’s fundamental rights protected by the Basic Law or the Bill of Rights.  That may or may not be the case here. But as I have indicated, we will proceed for argument’s sake, on the basis that it is.  The factual issue before the court was the recording by customs officers of a conversation between the defendant and an undercover officer from the United States Drug Enforcement Agency in a private hotel room, which was in violation of his constitutional right to privacy, contrary to Article 14 of the Bill of Rights and Article 30 of the Basic Law.

14.  The Court of Final Appeal, in considering the decisions of the court below, referred to HKSAR v Chan Kau Tai [2006] 1 HKLRD 400, at pages 443A to 448F, in which the Chief Judge of the High Court said:

“First, account must be, of course, taken by the court of any breaches of rights contained in the Basic Law or the ICCPR.

Second, any breaches as aforesaid will not, however, automatically result in the exclusion of the evidence obtained in consequence of the breach. The court still retains discretion to admit or to exclude the evidence.

Third, the discretion in the court to admit or exclude evidence involves a balancing exercise in which the breach of constitutional right is an important factor whose weight would depend on mainly two matters, the nature of the right involved, and the extent of the breach.”

Still, referring to Chan Kau Tai:

“In the present context, there are two main competing interests, both facets of what can broadly be called the public interest on the one hand, the interest in protecting and enforcing constitutionally guaranteed rights, and on the other hand, the interest in the detection of crime and bringing criminals to justice.

Where the gravity of a breach or derogation is small, but the crime involved is a serious one, the public interest will lean more favourably towards the latter factor, with the consequence that any evidence obtained as a result of the breach or derogation will be admitted.”

That test was distilled further by Bokhary PJ in Khan, when he said at paragraph 20:

“The test can be stated thus. Evidence obtained in breach of a defendant’s constitutional rights can nevertheless be received if, upon a careful examination of the circumstances, its reception (i) is conducive to a fair trial.”

(And I would say that refers to the Sang principles:)

“(ii) is reconcilable with the respect due to the right or rights concerned, and (iii) appears unlikely to encourage any future breaches of that, those or other rights.

The risk-assessment called for under the third element will always be made by the courts, vigilantly, of course, in the light of their up to date experience.  Thus is achieved, consistently with the constitution, a proper balance between the interests of the individual defendants and those of society as a whole.  It cannot have been the framers’ intention, and is not the constitution’s effect to stand in the way of such a balance being struck, just as rationality and proportionality can justify an impact on a non-absolute constitutional right, so can they justify a discretion to receive evidence obtained in breach of that constitutional right.  Under the test stated above, the discretion concerned is rational and proportionate.  The factors to be taken into account in applying this test and the weight to be accorded to each such factor will depend on the circumstances of each case.”

15.  For the avoidance of doubt, the Court of Final Appeal made it plain at paragraph 15 that there is, under our law, no absolute bar to the reception of evidence obtained in breach of the defendant’s constitutional rights, which is where, I think, our debate started.  It is a matter of discretion.  That is a reiteration of the common law principle under the line of authorities of which Kuruma and Sang are notable, and which has not been undermined.

16.  In answering the test, this court has considered that there may or may not be a breach of the defendants’ fundamental rights under the Bill of Rights and the Basic Law, but assuming that there is, that is not the end of the matter.  Should this court exercise its discretion, therefore, to admit or exclude the subject evidence?  It is already admitted, under a signed Admitted Facts made with the benefit of counsel’s advice, which was entered before this court, prior to the judgment in question.  It is therefore open to an application to be withdrawn, such application not yet having been made.

17.  But in exercising its discretion, this court must consider whether the admission of that evidence is conducive to a fair trial.  And in doing so, this court has considered the nature of the rights breached and the extent and manner of breach, in considering the two competing areas of public interest, as I have said before, the interest in protecting and enforcing constitutionally guaranteed rights, and the interest in the detection of crime and of bringing criminals to justice.

18.  And lastly, the court considered whether the admission of such evidence in the circumstances of this case appears likely to encourage any future breaches.

19.  In conclusion, there is no question that the error made in this matter, if indeed there was an error, could not have been rectified by a search warrant, and there is no doubt that such a search warrant would have been obtained in a case as serious as this.  No one suggests otherwise.

20.  There is no doubt that such a warrant could have been obtained, and could still be obtained if the jury were to be discharged and a new trial ordered.  The defence would be in no way prejudiced by this fact.

21.  There is no suggestion of any misfeasance by Customs & Excise, no criticism is made of them or the prosecution.  The harm relied upon, then, is one of lack of authority.  Only Mr Egan says they had no authority to interrogate in the circumstances of this case, rather than they could not have obtained the authority to interrogate, which sets it apart, of course, from the Khan case at the time.

22.  In those circumstances, and given the public interest in bringing to account those who seek to commit serious crimes in Hong Kong, I will not exercise my discretion to exclude the evidence already agreed and admitted within the Admitted Facts at P130.