TSOI MAN HUNG AND ANOTHER v. COMMISSIONER OF POLICE

HCAL37/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 37 OF 2007

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J U D G M E N T

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1.  In this judicial review application, the applicants seek to challenge the decisions of the Commissioner of Police (“the Commissioner”) to take a non-intimate sample of a swab from the mouth of each of them upon their being convicted in the Magistrates’ Courts for the offence of possession of dangerous drugs on the basis that it is an unlawful exercise of the power under section 59E of the Police Force Ordinance, cap.232.  The applicants’ argument is that the power to take a non-intimate sample under section 59E cannot be exercised on a person convicted in the Magistrates’ Courts. What is in issue is the construction of section 59E having regard to the meaning of “serious arrestable offence” as contained in section 3 of the same Ordinance.

The applicants

2.  On 21 November 2006, the 1^st applicant appeared in the Kowloon City Magistrates’ Courts and pleaded guilty to the offence of possession of a dangerous drug, contrary to section 8(1)(a) of Dangerous Drugs Ordinance, cap.134. The dangerous drug in question is five plastic bags containing a mixture weighing 0.26 grammes containing 0.20 grammes of cocaine and three plastic bottles containing 290 ml of liquid containing traces of cocaine. The 1^st applicant was convicted and on 3 January 2007, sentenced to 15 months’ probation.

3.  After he was sentenced, police officers approached the 1^st applicant and took a non-intimate sample of swab of the mouth from him. At the time, the 1^st applicant’s solicitor had queried the authority of the police to take non-intimate samples from persons convicted of possession of dangerous drugs after a summary trial, but were informed by the police officers that they were acting according to police standing instructions.

4.  In the case of the 2^nd applicant, he was charged to appear in the Eastern Magistrates’ Courts for the offence of possession of dangerous drugs. The drug in question was a hand-rolled cigarette containing 0.11 grammes of cannabis. He pleaded not guilty. On 21 March 2007, he was convicted after trial and fined $2,500.

5.  After he was sentenced, a non-intimate sample of swab of the mouth was also taken from him by police officers. He had not raised any query or objection, being under the impression that the police was acting within lawful authority.

6.  Subsequently, the 2^nd applicant appealed against the conviction. The appeal was heard after leave to apply for judicial review was granted.  The appeal was allowed and the conviction was quashed.  Mr Bruce SC who appears for the Commissioner informed the Court that in consequence of this, the sample taken from the 2^nd applicant had been destroyed.

The collection of buccal swab sample

7.  The collection of a non-intimate sample of a swab from the mouth (also known as buccal swab) of each of the applicants is for the purpose of obtaining a DNA (deoxyribonucleic acid) profile. This buccal swab technique involves wiping a purpose-designed swab along the inside of the cheek part of the mouth to collect a buccal cell sample. It is a painless process. The sample taken will be processed and the information derived will be stored in a DNA database, which is maintained by the Government Chemist on behalf of the Commissioner.

8.  The affirmation of Chief Superintendent Ng Kam Wing filed on behalf of the Commissioner, pointed out that it is now widely accepted that DNA, which is a chemical substance, contains a unique identifying human characteristic. Comparison of DNA profiles can either implicate a suspect with a high degree of certainty of the suspect’s involvement or exonerate the suspect where the profiles do not match. DNA profiling is therefore considered to be a vital addition to other identification techniques such as fingerprints, photography and blood typing.

The Police Force Ordinance, cap.232 (“PFO”)

9.  By Amendment Ordinance No.68 of 2000, the PFO was amended by adding sections 59A to 59I. In summary, the amendment is to cater for the collection and use of DNA samples and profiles and the establishment of a DNA database. Sections 59A and 59B relate to the taking of intimate samples from a suspect, with or without his consent, for the purpose of investigation. Under section 59A(2), an authorizing officer may only authorize the taking of an intimate sample if he has reasonable grounds for suspecting that the suspect has committed a serious arrestable offence.

10.  Section 59C authorizes the taking of non-intimate sample from a suspect, with or without his consent, for the purpose of investigation. Under section 59C(2), an authorizing officer may only authorize the taking of a non-intimate sample if he has reasonable grounds: (a) for suspecting that the suspect has committed a serious arrestable offence, and (b) for believing that the sample will tend to confirm or disprove the commission of the offence by the suspect. Section 59D limits the use of samples obtained under sections 59A and 59C and the forensic analysis results of these samples.

11.  Section 59E, with which this application is directly relevant, empowers the taking of non-intimate samples from convicted persons. Section 59E(1) reads:

“	Where a person-
	(a)	has been convicted of a serious arrestable offence on or after the commencement of this section; and
	(b)	either-
		(i)	has not had an intimate sample or a non-intimate sample taken from him before the conviction; or
		(ii)	has had an intimate sample or a non-intimate sample taken from him before the conviction but the sample was destroyed under section 59H(1) or (4) or section 10G(1) or (4) of the Independent Commission Against Corruption Ordinance (Cap 204), then a police officer of the rank of superintendent or above may authorize the taking of a non-intimate sample of a swab from the mouth of the person for the purposes of section 59G(1) and (2).”

12.  Section 59F concerns the taking of non-intimate samples from volunteers, which is not relevant to the present application.

13.  Section 59G provides for the establishment of a DNA database, which is to be maintained by the Government Chemist on behalf of the Commissioner, and the limited purposes for which access and disclosure of the information stored in the database may be permitted. Section 59G(1) provides that the DNA database will store intimate and non-intimate samples obtained under sections 59A, 59C, 59E or 59F.  In the case of sections 59A and 59C, section 59G(1)(a) further provides that only samples of suspects who have been subsequently convicted of any serious arrestable offence will be stored in the database.      

14.  It can be seen that the threshold for the exercise of the powers under sections 59A, 59C and 59E to take DNA samples is that the person is suspected of having committed or convicted of a serious arrestable offence. Under section 3 of PFO, “serious arrestable offence” is defined as meaning:

(a)	An offence for which a person may under or by virtue of any law be sentenced to imprisonment for a term not less than 7 years; or
(b)	Any other offence specified in Schedule 2 to the Ordinance.

15.  Schedule 2 specifies six offences under the Crimes Ordinance, cap.200.

Police guidelines on the taking of non-intimate DNA samples

16.  Following the enactment of sections 59C and 59E of PFO, the Commissioner had formulated a policy or guideline to regulate the exercise of the power to collect non-intimate DNA samples from persons suspected of commission or convicted of serious arrestable offences.  Under the Commissioner’s policy, DNA samples will only be collected from persons suspected of commission or convicted of a serious arrestable offence that is listed in a List of Selected Serious Arrestable Offences. In his affirmation, Chief Superintendent Ng explained that it was due to resources consideration that only a limited number of serious arrestable offences were chosen for the collection of DNA samples.  

17.  The List of Selected Serious Arrestable Offences is reviewed from time to time.  Since 1 January 2004, the offence of possession of dangerous drugs under section 8 of the Dangerous Drugs Ordinance was added to the List. In his affirmation, Chief Superintendent Ng explained the considerations underlying the decision to add the offence to the List. Among other matters, it was pointed out that police records and statistics indicate that drug abusers are potential repeat offenders who are more inclined to commit other crimes to support their drug habits.

18.  Between 1 July 2001, when Ordinance No.68 of 2000 took effect, and 11 June 2007, 15,701 DNA profiles have been added to the database. Out of these, 3,796 (i.e. 24.2%) were collected from persons convicted in the District Court (2,646 samples) and the Court of First Instance (1,150 samples).  As at 1 June 2007, there are 15,771 profiles in the DNA database, of which 7,025 were collected from persons convicted of the offence of possession of dangerous drugs in the Magistrates’ Courts. 

The application for judicial review

19.  On 2 April 2007, the applicants filed the Form86A to apply for leave to judicial review.  Leave was granted on 19 April 2007. The Notice of Motion was filed on 24 April 2007.

20.  The Form 86A and the Notice of Motion seek three relief:  

(1)	A declaration that the decisions of the Commissioner to authorize the taking of a non-intimate sample of a swab from the mouth of each of the applicants are unlawful and/or that the practice of taking non-intimate samples at the Magistrates’ Courts from persons convicted before a magistrate of the offence of possession of a dangerous drug is unlawful.
(2)	An order of mandamus requiring the Commissioner and the Government Chemist to destroy the non-intimate samples taken from the applicants and/or the DNA information derived from such non-intimate samples and stored in the DNA database maintained by the Government Chemist on behalf of the Commissioner.
(3)	Damages for unlawful trespass to the person, including exemplary damages.

21.  At the hearing, Mr King SC accepted that the 2^nd applicant does not need to, and will not, pursue the relief of mandamus in light of his successful appeal and the fact that the sample taken from him had already been destroyed.  He further indicated that while still pursuing the relief of damages, the applicants no longer claim exemplary damages.

The applicants’ arguments

22.  The applicants’ arguments are premised on section 92 of the Magistrates Ordinance, cap.227 and section 8(2) of the Dangerous Drugs Ordinance. Under section 92, indictable offences, other than those specified in Part I of the Second Schedule to the Magistrates Ordinance, may be dealt with by a permanent magistrate summarily. The section further provides that on a summary conviction, the magistrate may sentence the accused to imprisonment for 2 years and to a fine of $100,000. 

23.  As for section 8(2) of the Dangerous Drugs Ordinance, it provides:

“	Any person who contravenes any of the provisions of subsection (1) shall be guilty of an offence and shall be liable –
	(a)	on conviction upon indictment to a fine of $1,000,000 and subject to section 54A, to imprisonment for 7 years, or
	(b)	on summary conviction to a fine of $100,000 and, subject to section 54A, to imprisonment for 3 years.”

24.  The combined effect of section 92 of Magistrates Ordinance and section 8(2) of Dangerous Drugs Ordinance is that the offence of possession of dangerous drugs is triable either upon indictment or summarily. When it is tried summarily in the Magistrates Court, the maximum sentence is imprisonment for 3 years and a fine of $100,000.

25.  The applicant’s argument is that since a person convicted of the offence of possession of dangerous drugs in the Magistrate Courts may only be sentenced to imprisonment for 3 years or a fine of $100,000, he is not convicted of a serious arrestable offence within the meaning of section 59E of PFO when read together with section 3, which defines a “serious arrestable offence” as one that attracts a minimum sentence of 7 years.  It is further contended that the statutory intention could not have been to create a DNA database for minor offences. Since the choice of venue for trial rests with the prosecution, and given the consequence of a summary trial in Magistrates’ Courts in terms of sentencing, the power to collect non-intimate sample under section 59E cannot be exercised on persons convicted in the Magistrates’ Courts.  

Section 59E and “serious arrestable offence”

26.  The core issue of this application is whether section 59E of PFO applies to a person who is convicted in the Magistrates’ Courts. The matter is one of statutory construction. That being the case, the starting point is to ascertain the literal meaning of the legislation in question. Mr King SC had helpfully reproduced the relevant part of section 59E of PFO with the words “serious arrestable offence” substituted by its meaning as defined in section 3. Thus substituted, the section reads:

“	Where a person –
	(a)	has been convicted of [an offence for which a person may under or by virtue of any law be sentenced to imprisonment for a term not less than 7 years] … ; and
	(b)	… ,
		then a police officer of the rank of superintendent or above may authorize the taking of a non-intimate sample of a swab from the mouth of the person for the purposes of section 59G(1) and (2).”  (emphasis added)

27.  It can be readily seen that the focus of the section is on the nature of the offence. The word “which” is a reference to “an offence” and not to the conviction of the offence.  The emphasis is therefore on the serious arrestability of the offence and not on what sentence it may attract at the sentencing stage. As Mr Bruce SC for the Commissioner submitted, the serious arrestability of an offence exists at its commission and this characteristic or feature of the offence will not change during the judicial process. The point is supported by the rationale in the Court of Final Appeal case of New Chuan Kong Investment Co Ltd & Another v. Securities & Futures Commission [1999] 3 HKLRD 897. In that case, one of the matters to be considered is whether prosecution of offences under the Leveraged Foreign Exchange Trading Ordinance, cap.451, which are triable either summarily or upon indictment, is subject to section 26 of the Magistrates Ordinance that imposes a six-month time limit for offences other than indictable offences. It was held that the character of an offence did not alter merely because the case was to be tried summarily. The late Ching PJ (with whose judgment the other members of the Court agreed) referred to section 14A of the Criminal Procedure Ordinance, cap.221 and stated (at 904-5):

“Two things are to be noted from this. The first is that there are only two types of offences, namely those which are summary and those which are indictable. The category of the offence is established upon its commission. Secondly, while summary offences can only be tried in a summary way, indictable offences may be tried either summarily or upon indictment. Indictable offences are sometimes tried summarily when, for instance, the gravity of the acts does not call for the process of, or heavier penalty that may be imposed on, indictment. It has been clearly and rightly established that the manner of trial does not determine whether the offence is a summary one or one which is indictable.”

28.  Mr King SC submitted that the rationale in the New Chuan Kong Investment Co Ltd case has no application to the present case. I do not agree.  Insofar as the applicants had argued in their Form 86A (see paragraphs 17-19) that the relevant time for determining whether a person has been convicted of a serious arrestable offence is the time after his conviction, that submission must be untenable in light of the Court of Final Appeal’s decision. Mr King SC had also argued that the issue in this application does not turn on the character or category of the offence or the mode of trial, but on the consequences of trying the offence in the Magistrates’ Courts.  A plain reading of the definition of “serious arrestable offence” in section 3 of the PFO demonstrates that it is concerned with the offence itself in terms of the sentence that it may attract as a matter of law. The fact that the offence is tried in the Magistrates’ Courts only impacts upon the sentencing power of the Court but does not alter the nature or characteristic of the offence, which is the rationale underlying the holding of the Court of Final Appeal in New Chuan Kong Investment Co Ltd. 

29.  Further, the argument advanced by the applicants tantamount to reading into section 59E a qualification that the person has been convicted other than summarily. However, there is no objective basis for so doing in light of the clear and unambiguous wordings in the section.

Statutory intention

30.  As to the argument on statutory intention, it is true that the legislature had intended to use serious arrestable offence as the threshold for the exercise of the power under section 59E. However it cannot be overlooked that the ultimate purpose of Ordinance No. 68 of 2000 is to set up and maintain a DNA database. A very small or limited database will not be effective nor serve the purpose of its establishment. There is no proper basis for inferring that the legislature has intended to maintain a restrictive database. It is a known fact, and the legislature must be taken to have known, that a large proportion of criminal cases are prosecuted and tried in the Magistrates’ Courts.  The position is as observed by Baroness Hale of Richmond in R (S) v. Chief Constable of the South Yorkshire Police & R (Marper) v. Chief Constable of the South Yorkshire Police [2004] 1 WLR 2196, 2219 at para.78, “The whole community, as well as the individuals whose samples are collected, benefits from there being as large a database as it is possible to have. … The benefit to the aims of accurate and efficient law enforcement is thereby enhanced.”  Given that the statute contains no qualifying words, there is no justification for inferring that the legislature had intended to restrict the power under section 59E by excluding persons convicted in the Magistrates’ Courts of serious arrestable offences.

31.  Further in ascertaining the statutory intention, it is instructive to look at the scheme of things under Amendment Ordinance No.68 of 2000. In this regard, section 59G(1)(a) of PFO provides that DNA information derived from the sample collected pursuant to sections 59A and 59C from a person suspected of a serious arrestable offence may be stored in the DNA database if the person has been subsequently convicted of any serious arrestable offence. Section 59H(1)(ii), on the other hand, requires the Commissioner to take reasonable steps to ensure that samples taken pursuant to sections 59A or 59C and record containing related information are destroyed if, inter alia, “the person is acquitted of the offence or all the offences, as the case may be, at trial or on appeal”.                  

32.  Plainly, when an authorizing officer exercises the power under section 59A or 59C, he will have to be satisfied that there are reasonable grounds to believe that the suspect has committed a serious arrestable offence. But he will not know, and cannot have regard to, whether the suspect will be tried summarily or upon indictment. It is therefore quite possible that a person who is convicted of a serious arrestable offence in the Magistrates’ Courts had already given a DNA sample during the investigation stage. By reason of section 59G(1)(a), the DNA information from his sample may be permanently stored in the database. On the applicants’ construction of section 59E, it will create a strange anomaly in that while the DNA information collected during investigation from persons convicted of a serious arrestable offence in the Magistrates’ Courts may be stored in the database, DNA samples cannot be taken from persons convicted of a serious arrestable offence in the Magistrates’ Courts. More importantly, the fact that DNA information taken during investigation from a person convicted in the Magistrates’ Courts may be stored in the database permanently demonstrates that there is no objective basis for inferring that the legislature intended to confine serious arrestable offences to those tried upon indictment or that the power to collect samples cannot be exercised against persons convicted of a serious arrestable offence in the Magistrates’ Courts.

33.  The point is further reinforced by section 59H(1)(ii)(C) which does not differentiate between serious arrestable offences tried summarily and those tried upon indictment when providing that DNA samples and records collected for the purpose of investigation, are to be destroyed upon acquittal of “the offence” (which will be a reference to the serious arrestable offence that he was suspected of) or “all the offences” at the trial or on appeal. 

Right to privacy

34.  In both the Form 86A and in Mr King SC’s submissions, reference is made to the right of freedom of the person, the right to liberty and security of the person and the right of privacy under the Basic Law and the International Covenant on Civil and Political Rights 1996.  As Mr Bruce SC observed, the applicants are not making a constitutional challenge. The reference is made in the context of statutory construction. The thrust of the applicants’ argument is that, in the absence of express language and necessary implication, the legislation must be construed narrowly and should not be read as overriding or interfering with fundamental and constitutionally protected rights.  It was further argued that it could not have been the statutory intention for the database to include minor offences since the collection of buccal swab sample is an invasion of privacy. 

35.  It is accepted that the legislature does not generally intend to override or interfere with fundamental and constitutionally protected rights: R v. Secretary of State for the Home Department ex parte Simms [2000] 2 AC 115, 131.  However, there is no objective basis to believe that the legislature was not aware of the concerns for privacy when considering the amendments to PFO.  It must be evident from the enactment of Ordinance No. 68 of 2000 that the legislature approved the establishment of a DNA database and was further prepared to permit the taking of intimate and non-intimate DNA samples for the purpose of maintaining the database.

36.  In R (S) v. Chief Constable of the South Yorkshire Police & R (Marper) v. Chief Constable of the South Yorkshire Police, op cit, the House of Lords rejected the challenge that the UK legislation permitting the retention of fingerprint and DNA sample of a person who had not been convicted of an offence was an interference with the right to privacy. It took the view that, even if the taking and retention of DNA samples did amount to interference with the right to respect for private life, the invasion is minimal and is amply justified for the prevention, detection and prosecution of crimes. 

37.  The reasoning of the House of Lords (which relate to a wider power of retention of DNA information) applies with full force to the present case.  Mr King SC made the point that the buccal swab technique involves intrusion into the bodily cavity of the person from whom the sample is to be taken.  Nevertheless, it does not detract from the fact that the invasion involved is minimal. The power under section 59E is proportionate to the object of investigation and prosecution of crimes and, to this end, the creation of an effective DNA database.

38.  In addition, it is to be noted that DNA profiling and comparison is only one type of investigation tool and that it can be used to exculpate as much as it can be used to inculpate. There are other identification techniques, such as fingerprints, photography and blood typing. Before the 2000 amendment to the PFO, there is already power under section 59 to take identifying particulars from an arrested person, namely photographs, finger-prints, palm-prints, weight and height. There is also power to take the sole-prints and toe-prints if the officer has reason to believe that such prints would assist the investigation of any offence. The section further empowers the Commissioner to retain the identifying particulars of a convicted person.  Section 59 does not draw a distinction between convictions in the Magistrates’ Courts and convictions in other level of courts. At the same time, there are a variety of legislative provisions that permit the invasion of bodily privacy for the purpose of investigation or gathering of evidence, such as sections 39B and 39C of the Road Traffic Ordinance, cap. 374 (authorizing the taking of breath, blood or urine specimen for analysis) and section 54 of the Dangerous Drugs Ordinance (authorizing the taking of finger nails or handwriting specimen for analysis).

Conclusion

39.  For the reasons set out above, the application for judicial review is dismissed. Applying the normal rule of costs follow event, there is an order nisi that the applicant pays the respondent the costs of these proceedings, to be taxed if not agreed.