HKSAR v. CHEUNG ALBERT (張鼎)

FAMC Nos. 37 and 38 of 2025

[2025] HKCFA 22

FAMC No. 37 of 2025

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 37 OF 2025 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACC NO. 237 OF 2015)

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FAMC No. 38 of 2025

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 38 OF 2025 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACC NO. 237 OF 2015)

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DETERMINATION

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The Appeal Committee:

1.  On 16 April 2020, the Court of Appeal refused to certify questions proposed by the applicants for their application for leave to appeal to this Court.[1]

The applicants’ Notices of Motion

2.  By Notices of Motion filed in August of this year, the applicants each apply out of time to the Appeal Committee for leave to appeal in respect of the following three questions of law, namely:

1.  Whether an interception carried out pursuant to an executive authorization issued under section 15 of the [ICSO] is unconstitutional as a breach of Article 30 of the Basic Law and Article 14 of the Hong Kong Bill of Rights Ordinance (Cap 383) as the application for that authorization is not supported by material supplied upon oath, and the application is granted by a person who is neither a judge nor a person capable of acting judicially (“Question 1”);

2.  Whether the remedial interpretation of section 61(4) of the ICSO made by the Court of Appeal on 9 October 2019 at paragraph 3 is a valid exercise of the judicial power of that Court in that:-

(a)     duty for a law enforcement agency to disclose information to the prosecution subject to conditions was interpreted as a duty to disclose information unconditionally and a mandatory duty for the prosecution to disclose the information to a judge was interpreted as a duty to disclose to the judge subject to conditions; and

(b)     even if the remedial interpretation in (a) is capable of being a valid exercise of the judicial power of the Court of Appeal, this interpretation is unavailable with the passage of the Bill for ICSO through the Legislative Council whereby provisions of the Bill providing for disclosure of all the information to the Prosecution were removed by the Legislative Council before enactment of the ICSO (“Question 2”); and

3.  Whether the Applicant received a fair trial under Article 87 of the Basic Law and Articles 10 and 11(2) of the Hong Kong Bill of Rights Ordinance (Cap 383) as the information referred to in section 61(4) ICSO was disclosed to the Prosecutor but not to the Applicant (“Question 3”).

3.  Ms Samantha Chiu, appearing for the respondent, does not accept that any basis exists for extending time but she fairly acknowledges that if leave to appeal is merited, it should not be refused simply because of the delay.

4.  The issues in this case concern the construction and scheme of the Interception of Communications and Surveillance Ordinance (“ICSO”)[2] in its constitutional context.

5.  Question 1 seeks leave to revive an argument advanced before the Court of Appeal that ICSO’s scheme for executive authorization of Type 2 surveillance involves an unconstitutional infringement of privacy rights because they empower a law enforcement officer rather than a judge to issue such authorizations, relying on unsworn materials.

6.  The Court of Appeal gave ample reasons for upholding the legitimacy and proportionality of the aforesaid arrangement, listing substantial factors in support.[3]  These include the relatively low level of intrusion into privacy since the targeted person intends what he says to be heard by another; the Code of Practice[4] which imports a degree of independence to the role of authorising officer; the need for operational efficiency and speedy authorisation; oversight by the Commissioner; and, importantly, the fact that the undercover officer could in any event testify as to what was said, with the surveillance product accurately recording the exchange.[5] The applicants have not countered those reasons and no basis exists for the grant of leave.

7.  Question 2 seeks to challenge the legal basis for the Court of Appeal’s remedial interpretation of s 61(4) whereby it held that allocation to a law enforcement agency rather than the prosecution of the duty to make material disclosures imports a disproportionate limitation on the common law duty of disclosure which bears on the fairness of the trial. 

8.  Although, as we indicate below, other aspects of the remedial interpretation require consideration, we can see no reasonably arguable basis for the applicants’ challenge and refuse leave on Question 2. 

9.  Question 3 is formulated narrowly, asking whether the right to a fair trial was infringed because “the information referred to in section 61(4) ICSO was disclosed to the Prosecutor but not to the” applicants.  However, in his submissions, Mr Andrew Bruce SC sought to advance a somewhat unfocussed and speculative argument suggesting that, despite the disclosures which were admittedly made, there may have been other materials withheld.  We do not consider that Question 3, either as formulated or as broadly proposed, is reasonably arguable and refuse leave thereon. 

Issues raised by the Appeal Committee

10.  The parties were notified prior to the hearing that their assistance would be sought regarding certain specified issues which might merit consideration by the Court. 

11.  The first issue concerns the Court of Appeal’s approach to assessing the proportionality of the ICSO’s scheme for executive authorizations.  Having heard the parties, we consider that it raises a question of the requisite importance and grant leave to appeal thereon, namely:

In the light of ICSO s 3(c), was the Court of Appeal correct to adopt the “manifestly without reasonable justification” standard in holding that the ICSO’s scheme for executive authorizations is proportionate and constitutionally unobjectionable? (Question A)

12.  In connection with the other issues we raised, we sought confirmation, which Ms Chiu provided, that in the present case:

(a)     the covert surveillance only involved use of audio recording devices during five meetings held between undercover ICAC officers and the applicants, as noted by the Court of Appeal;[6]

(b)     authorization for Type 1 surveillance of the 7^th and 8^th meetings was obtained from Panel Judges because the ICAC Principal Investigator in charge of the undercover operation anticipated that information which may be subject to legal professional privilege might by obtained, as noted by the trial Judge;[7] and,

(c)     no telecommunications interception issues arose and, subject to redactions of certain parts of the documents relied on in applying for the authorizations, disclosure was made to the defendants of all the application materials and surveillance product.

13.  In the light of such confirmation, and in particular the absence of any telecommunications interception in the present case, an important question which is necessarily preliminary to the other issues we sought assistance on arises as follows:

On the true construction of the relevant provisions of the ICSO, is s 61 engaged in the present case? (Question B)

We accordingly grant leave to appeal thereon.

14.  The Questions which follow would have no immediate relevance if the answer to Question B is in the negative.  However, if s 61 is engaged, whether in the present or some other case, the Court of Appeal’s treatment of issues arising under s 61, including the remedial interpretation adopted, is important and merits consideration by the Court.  We therefore grant leave on the following Questions:

What are the implications, if any, of the prohibition against disclosure to any party contained in ICSO s 61(2) on the remedial interpretation adopted by the Court of Appeal? (Question C)

On the true construction of the ICSO, what is the scope of the restrictions on disclosure regarding the contents of applications for prescribed authorizations (as opposed to the product of Type 1 or Type 2 surveillance) such as to justify the withholding or redaction of such materials? (Question D)

15.  As a consequence of granting leave on the above-mentioned Questions we would add the following:

As an adjunct to each of Questions A to D inclusive, to what extent if any, does the answer have an impact on the applicants’ convictions?  (Question E)

16.  The appeal will be listed for hearing on 22 May 2026.