HKSAR v. LAM HON KWOK POPY AND OTHERS

[English Translation – 英譯本]
CACC 528/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 528 OF 2004

(On Appeal From District Court Criminal Case No. 197 of 2004)

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JUDGMENT

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Hon Cheung JA:

1.  This case raises important issues on the protection of privacy rights of the citizen under the Hong Kong Basic Law and Hong Kong Bill of Rights.

2.  The three applicants under this leave to appeal application (namely, 1^st, 4^thand 5^thdefendants at the trial) together with two other defendants (namely, the 2^nd and 3^rd defendants at the trial) were charged with various offences.  They were convicted as charged after trial by Deputy District Judge J Lam.  The three applicants now apply for leave to appeal against conviction.  The 3^rd defendant had absconded from bail when the judge delivered his verdict.

The 1^st defendant

3.  The 1^st defendant was convicted of the offence of conspiracy to live on earnings of prostitution (the second charge at the trial) and the offence of incitement to commit conspiracy (the fourth charge at the trial).  The particulars of the second charge stated that the 1^st and 2^nd defendants on various days between July 2003 and 8 September 2003 in Hong Kong conspired together and with Wong Kwok Leung to knowingly live wholly or in part on the earnings of prostitution of women.  The particulars of the fourth charge stated that the 1^st and 2^nd defendants on 2 August 2003 in Hong Kong incited Ho Yiu Choa to conspire with the 1st defendant to commit robbery.  Furthermore, the 1^st defendant admitted an offence of possession of prohibited weapon (the fifth charge at the trial).

The 4^thdefendant

4.  The 4^thdefendant was convicted of two offences.  The first charge was conspiracy to live on earnings of prostitution (the first charge at the trial) and one charge of conspiracy to pervert the course of justice (the sixth charge at the trial).

5.  The particulars of the first charge stated that the 4^thdefendant, the 3^rddefendant and the 5^thdefendant on various days between February 2003 and 8 September 2003 in Hong Kong conspired together and with Wong Kwok Leung to knowingly live wholly or in part on the earnings of prostitution of women.  The particulars of the sixth charge stated the 4^thdefendant and 3^rddefendant on various days between 11 September 2003 and 30 September 2003 conspired together to pervert the course of justice by taking part in a scheme to dissuade, pressurise or prevent potential witnesses in a criminal investigation carried out by the Independent Commission Against Corruption (‘ICAC’) and to which they were subject from providing information or statements to the ICAC.

The 5^thdefendant

6.  The 5^thdefendant was convicted of one charge of conspiracy to live on earnings of prostitution (the first charge at the trial).  The particulars of this charge were the same as that of the first charge faced by the 4^thdefendant.

Evidence of the first charge

7.  The 2^nddefendant is a former officer of the Customs and Excise Department, the other defendants are serving police officers.  The facts of this case are fully set out in the judgment of Yeung JA.  I would not repeat them here.

8.  I will deal with the first charge first.  Under this charge, the ICAC arrested the defendants and a person called Wong Kwok Leung between 8 September 2003 and the early morning of 9 September 2003. The ICAC had conducted investigation at a premises in Champagne Court in Tsim Sha Tsui which was involved with prostitution.  It arrested two prostitutes and two staff at the premises.  The two staff were Prosecution Witness No. 5 and No. 6.  Their names were Tse Chun Wai (‘Chu Tsai’) and Lee Yiu Ming (‘Se Tsai’).  Wong Kwok Leung was the operator of the brothel.  Wong Kwok Leung did not make any admissions when he was arrested on 8 September but on the next day, he informed ICAC that he would be willing to become a prosecution witness so that he would not be prosecuted.  Upon approval by the Secretary for Justice, ICAC took a non-prejudicial statement from Wong Kwok Leung.  This means that the content of the statement could not be used against the person who provided the information but he could still be prosecuted by way of other evidence.  In this statement Wong Kwok Leung alleged that the 3^rd, 4^thand 5^thdefendants were partners of the brothel.  Thereafter conversations either on the telephone or in meetings between Wong Kwok Leung and the three defendants were recorded by Wong Kwok Leung with a digital recorder provided to him by the ICAC.

9.  At the trial the evidence against the 3^rd, 4^thand 5^thdefendants came from Wong Kwok Leung and the recordings.  The recordings in respect of the first charge are Exhibits P13 and P16.  P13 contains the telephone conversation between the 4th defendant and Wong Kwok Leung on 18 September 2003.  P16 is the recording of the discussion between the 3^rd, 4^thand 5^thdefendants and Wong Kwok Leung when they met at the Flying Machine Bar at the Regal Hotel.

Hong Kong Basic Law and Hong Kong Bill of Rights

10.  The dispute arising from the recordings is whether the recordings made by Wong Kwok Leung under the authority of the ICAC were in breach of Article 30 of the 'Fundamental Rights and Duties of the Residents’ (Chapter III) of the Hong Kong Basic Law (‘Basic Law’), namely:

‘The freedom and privacy of communication of Hong Kong residents shall be protected by law. No department or individual may, on any grounds, infringe upon the freedom and privacy of communication of residents except that the relevant authorities may inspect communication in accordance with legal procedures to meet the needs of public security or of investigation into criminal offences.’

and Article 39:

‘The provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.’

11.  The rights protected by Article 39 is Article 14 of the Hong Kong Bill of Rights (‘Bill of Rights’):

‘(1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

(2) Everyone has the right to the protection of the law against such interference or attacks.’

and also Article 11 (2)(g) of the Bill of Rights:

‘ In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality-

   (g) not to be compelled to testify against himself or to confess guilt.’

The steps in dealing with the issue

12.  Article 30 of the Basic Law and Article 14 of the Bill of Rights protect privacy rights.  In my view, the Court should adopt the following two steps in dealing with this issue:

First, the Court should consider whether an act infringes the privacy rights under the Basic Law or the Bill of Rights.  In considering this issue the Court should also adopt two steps.  The first consideration is whether the conversation between the parties involves privacy rights.  If it does, then it is necessary to see whether under the proportionality test the action of secret recording is acceptable so that the act would not infringe the protection by the Articles.

Second, if such an act infringes privacy rights, how should the Court deal with this unlawfully obtained evidence?

The first step: definition of privacy

13.  In deciding whether certain act involves privacy the principle adopted by this Court (Ma CJHC, Woo VP and Tang JA) in HKSAR v. Chan Kau Tai [2006] 1 HKLRD 400 is that a right to privacy generally exists where the person in question has a reasonable expectation of privacy.  In that case the ICAC installed camera and recording devices in the defendant’s office and secretly recorded the acts of the defendant in his office.  This Court held that the action infringed privacy rights.

Reasonable expectation

14.  My view is that Hong Kong residents, which include the 3^rd, 4^thand 5^thdefendants, have a reasonable expectation that the content of their private conversation with others on the telephone or in meetings which is intended to be heard only by the listener is private communication and consists of privacy rights and that it would not be secretly recorded by the government.  The above conversation will include those conducted in the public area where the noise level of the conversation could only be heard by the listener and the conversation is only intended to be heard by the listener and not by parties other than those engaged in the conversation.  In my view this is the most basic reasonable expectation.  Of course, when we have a conversation with another person there exists a risk that the other person will reveal the content of the conversation, but this risk is quite different from the risk involved when the government used the other person to secretly record the conversation and turn it into evidence of a permanent form.  As La Forest J of the Supreme Court of Canada said in R. v. Duarte [1990] 1 SCR 30 at page 48, these risks are of a different order and magnitude.  The one risks may in the context of law enforcement, be viewed as a reasonable invasion of privacy, the other unreasonable.  In other words, the law recognizes that we inherently have to bear the risk of the ‘tattletale’ but draws the line at concluding that we must also bear, as the price of choosing to speak to another human being, the risk of having a permanent electronic recording made of our words.  I disagree with the argument that what La Forest J said was based on the unique position of Canada or on its law and that his view does not apply to Hong Kong.  In my view what he said involves issues of principle under human rights charters.  Hong Kong has adopted these charters.  The fundamental rights of citizen under these charters have common features.  La Forest J at page 49 further expressed his views on secret recordings by participants to a conversation:

‘In summary, the question whether to regulate participant surveillance cannot logically be made to turn on the expectations of individuals as to whether their interlocutor will betray their confidence.

No justification for the arbitrary exercise of state power can be made to rest on the simple fact that persons often prove to be poor judges  of whom to trust when divulging confidences or on the fact that the risk of divulgation is a given in the decision to speak to another human being.

On the other hand, the question whether we should countenance participant surveillance has everything to do with the need to strike a fair balance between the right of the state to intrude on the private lives of its citizens and the right of those citizens to be left alone.’

15.  I agree that there are different levels of privacy rights but what I am concerned with is the issue of privacy that arose in this case.  Other privacy issues such as infringement of privacy by the media in reporting news should be considered in another appropriate case.  This case is also different from other cases such as a criminal who threatens and blackmails a victim either by telephone or face to face.  In such a situation I do not regard that the criminal will have any reasonable expectation that the content of their conversation is subject to privacy because under those circumstances the reasonable inference is that the victim will seek the help and protection of the police.

Content of the communication

16.  At this stage of the discussion I do not regard it necessary to consider the content of the conversation because otherwise it would not be possible to define the ambit of reasonable expectation.  I do not consider under the unique situation of the present case that if the conversation involves criminal activities, then it will affect the reasonable expectation of privacy by those people whose conversation had been secretly recorded.  As Lord Nicholas said in Campbell v. MGN Ltd [2004] 2 AC 457 at para. 21:

‘Accordingly, in deciding what was the ambit of an individual’s “private life” in particular circumstances courts need to be on guard against using as a touchstone a test which brings into account considerations which should more properly be considered at the later stage of proportionality.’

Method of recording

17.  In this case what ICAC had adopted was not fixed electronic surveillance devices as in the case of Chan Kau Tai, but a recording device hidden on the body of Wong Kwok Leung who had agreed to use this device.  In my view, it makes no difference to the issue whether privacy had been infringed by the use of different devices.  The principle adopted by the Court is whether people will have a reasonable expectation that their behaviors enjoy privacy rights.  Thus it makes no difference by whatever form it may be used to infringe the privacy rights.  As La Forest J says in R. v. Duarte (at page 47):

‘I am unable to see any logic to this distinction between third party electronic surveillance and participant surveillance. The question whether unauthorized electronic surveillance of private communications violates a reasonable expectation of privacy cannot, in my view, turn on the location of the hidden microphone. Whether the microphone is hidden in the wall or concealed on the body of a participant to the conversation, the assessment whether the surreptitious recording trenches on a reasonable expectation of privacy must turn on whether the person whose words were recorded spoke in circumstances in which it was reasonable for that person to expect that his or her words would only be heard by the persons he or she was addressing. As I see it, where persons have reasonable grounds to believe their communications are private communications in the sense defined above, the unauthorized surreptitious electronic recording of those communications cannot fail to be perceived as an intrusion on a reasonable expectation of privacy.’

18.  Furthermore, even if Wong Kwok Leung himself agreed to this secret recording it does not mean the defendants’ privacy rights had not been infringed.  La Forest J at page 47 stated this:

‘The Charter (i.e. the Canadian Charter of Rights) standard just described must, in my view, apply on a uniform basis. To have any meaning, it must be taken to afford protection against the arbitrary recording of private communications every time we speak in the expectation that our words will only be heard by the person or persons to whom we direct our remarks. Section 8 of the Charter guarantees the right to be secure against unreasonable search or seizure. Our perception that we are protected against arbitrary interceptions of private communications ceases to have any real basis once it is accepted that the state is free to record private communications, without constraint, provided only that it has secured the agreement of one of the parties to the communication. Since we can never know if our listener is an informer, and since if he proves to be one, we are to be taken to be tacitly consenting to the risk that the state may be listening to and recording our conversations, we should be prepared to run this risk every time we speak. I conclude that the risk analysis relied on by the Court of Appeal, when taken to its logical conclusion, must destroy all expectations of privacy.’

19.  Although La Forest J relied on Article 8 of the Canadian Charter of Rights, the principle in his comment is totally appropriate in respect of privacy rights as well.

Proportionality test

20.  The principle of proportionality is that in considering whether certain acts infringe the law, particularly provisions of the Basic Law, the Court must also consider other relevant factors, such as the content of the secret recording, the purpose of the infringement of privacy (for example, is the Government required to conduct investigation and other methods of investigation are inappropriate) and whether this method of investigation is done in accordance with the law.

21.  As a matter of fact Article 30 of the Hong Kong Basic Law has already clearly stated the principle of proportionality.  First of all this Article protects the freedom and privacy of communication of Hong Kong residents and ‘no department or individual may, on any grounds, infringe upon the freedom and privacy of communication of residents’.  The only exception is that ‘the relevant authorities may inspect communication in accordance with legal procedures to meet the need of public security or of investigation into criminal offences’.  As the case of Leung Kwok Hung and another v. The Chief Executive of HKSAR CACV 73/2006 and CACV 87/2006 (judgment of the Court of Appeal) and FACV No. 12 and 13 of 2006 (judgment of the Court of Final Appeal) revealed the  inspection of communications by the Hong Kong Government was carried out not in accordance with legal procedures prescribed by Article 30.  Accordingly in this case, the secret recording by ICAC of the conversations between Wong Kwok Leung and the 3^rd, 4^thand 5^thdefendants infringes Article 30 of Basic Law.  For the same reason this act also infringes the privacy protection granted by the Bill of Rights.

United Kingdom and European Cases

22.  In R. v. Bailey [2001] EWCA Crim 733 the English Court of Appeal was dealing with a similar issue as the present case.  In that case two undercover police officers pretended to be the neighbours of a defendant.  The officers acquainted themselves with the defendant and won his confidence.  Thereafter, they had a conversation with the defendant at his home.  The conversation was recorded by recorders hidden on their bodies. The prosecution relied on the recordings as evidence against the defendant.  The English Court of Appeal did not regard the act as infringement of privacy rights as conferred in England by the European human rights law.

23.  In my view, this is a restricted interpretation.  As a matter of fact, after Bailey the British Government in Khan v. United Kingdom [2001] 31 EHRR 45 accepted that the act of installing listening device at the home of a defendant infringed privacy rights.  The British Government also adopted the same position in Allan v. United Kingdom [2003] 36 EHRR 12.  In that case while the defendant was in prison, his conversations with others in custody in the meeting room and in his cell were recorded.  The police arranged an undercover agent pretending to be a cell mate to have conversation with the defendant and elicited information about his criminal activities with a recorder hidden on his body.  In my view, the decision in Bailey about whether the conversation was subject to privacy is no longer valid and Hong Kong courts should not rely on this case.

The second step: How to deal with unlawfully obtained evidence?

24.  It is now necessary to deal with the second step, namely, how to deal with the evidence that had been obtained in breach of privacy rights.  This Court in Chan Kau Tai had given the following direction:

‘First, account must of course be taken by the court of any breaches of rights contained in the Basic Law or the ICCPR. Second, any breach as aforesaid will not, however, automatically result in the exclusion of the evidence obtained in consequence of the breach: the court still retains a discretion to admit or exclude the evidence. Third, the discretion in the court to admit or exclude evidence involves a balancing exercise in which the breach of constitutional rights is an important factor whose weight will depend on mainly two matters: the nature of the right involved and the extent of the breach.’

Fair trial

25.  In carrying out the balancing exercise the court is required to consider whether the defendant has received a fair trial.  This involves not only procedural fairness but also the whole of the circumstances must look into which includes the conduct of the investigating authority, for example, whether this conduct is an abuse of the criminal legal system, the treatment received by the defendant and whether the importance of investigating and punishing the crime exceeds certain unconstitutional acts.

Right of silence and privilege against self-incrimination

26.  In this case, in considering the evidence obtained by ICAC in breach of the privacy rights conferred by the Basic Law, there is a very important matter to be taken into account, namely, when the 3^rd, 4^th and 5^th defendants were arrested by ICAC on suspicion of being involved with prostitution, they chose to remain silent.  The right of silence is protected by the common law and the Bill of Rights.  It also involves the issue of privilege against self-incrimination protected by Article 11(2) (g) of the Bill of Rights.

27.  The Court of Final Appeal in Lee Fuk Hing v. HKSAR [2005] 1 HKLRD 349 has reiterated the importance of the right of silence exercised by a defendant (see also the decision of this Court in HKSAR v. Mui Ting Tat CACC 320/2004).

28.  In Allan the European Court of Human Rights at para. 50 made the following comments on the right of silence and privilege against self-incrimination.

1) The right to silence and the privilege against self-incrimination are primarily designed to protect against improper compulsion by the authorities and the obtaining of evidence through methods of coercion or oppression in defiance of the will of the accused, the scope of the right is not confined to cases where duress has been brought to bear on the accused or where the will of the accused has been directly overborne in some way.

2) The right, which is at the heart of the notion of a fair procedure, serves in principle to protect the freedom of a suspected person to choose whether to speak or to remain silent when questioned by the police.  Such freedom of choice is effectively undermined in a case in which, the suspect having elected to remain silent during questioning, the authorities use subterfuge to elicit, from the suspect, confessions or other statements of an incriminatory nature, which they were unable to obtain during such questioning and where the confessions or statements thereby obtained are adduced in evidence at trial.

Lam Tat Ming

29.  The issue before the Court of Final Appeal in Secretary for Justice v. Lam Tat Ming and another [2000] 3 HKCFAR 168 is how the court should deal with a confession that was obtained in breach of the defendant’s right of silence.  In that case two defendants were charged with corruption offences.  The ICAC after the crime had occurred, commenced undercover operation and successfully obtained confessions from them.  At that time they had already indicated they would exercise their right of silence.  The Court of Final Appeal gives important directions on this issue.  Before I refer to the extract of the direction, one point needs to be emphasized: the Court of Final Appeal’s direction is based on the fact that the confessions were voluntarily made and could be admitted as evidence (see pages 177 to 181).  What the Court of Final Appeal needs to consider is how the court should exercise the discretion in rejecting or admitting the evidence when it performs the duty of ensuring that the defendant would receive a fair trial. The direction given by the Court of Final Appeal at page 181 is:

‘Where the undercover officer plays a passive role and hears or overhears the confession or records it, there can be no basis for rejecting it....

The real problem arises where the undercover officer plays an active role in procuring the confession from the suspect by asking questions.  If it were not an undercover operation, the suspect would have to be cautioned reminding him of his right of silence and enabling him to make a choice whether or not to speak. With an undercover operation, this obviously could not be done.  In this situation, once the officer actively questions the suspect, we enter into an area which may engage the exercise of the residual discretion.

How it should be exercised will depend on what follows.  If all the officer does is to draw attention to the incident which gives rise to the offence charged, in the absence of any other relevant circumstances, there is no persuasive reason for excluding a confession made.  The officer is doing no more than providing an opportunity for the suspect to speak.  If however what the officer does amounts to interrogation, the discretion would ordinarily be exercised so as to exclude the confession.  Such an interrogation would constitute a derogation of the accused’s right of silence and thus prejudice his fair trial.  Whether the conversation amounts to an interrogation would have to be determined having regard to all the circumstances.  As a matter of fact, whether such an interrogation can feasibly be conducted in the context of an undercover operation without blowing the cover, would depend on the relationship between the suspect and the undercover officer in his posed capacity.

In the exercise of the residual discretion whether to exclude a voluntary confession, the courts may take into account as a factor the gravity of the offence.  However, it would not be right to give great weight to this consideration because to do so would be to devalue the right to a fair trial to which all persons are entitled for all offences.  But it is a relevant factor.  The law’s approach to this matter has to take into account community interests, as well as the rights of suspects.’  (emphasis added)

30.  The Court of Final Appeal when giving this direction adopted the decision of Supreme Court of Canada in R. v. Broyles [1991] 3 SCR 595.  In that case Iacobucci J dealt with the relevant factors in considering whether an undercover agent had elicited the confession of the defendant.  He stated at page 610 that in developing a definition of elicitation he did not need to refer to the law of the USA.  This shows that the principles in Broyles are applicable to jurisdictions including Hong Kong which adopted the English common law system.  He also stated that the undercover agent must be an agent of the state which includes a law enforcement officer and also an informer who has received approval from the law enforcement agency to elicit evidence from the defendant:

In my view, it is difficult to give a short and precise meaning of elicitation but rather one should look to a series of factors to decide the issue.  These factors test the relationship between the state agent and the accused so as to answer this question: considering all the circumstances of the exchange between the accused and the state agent, is there a causal link between the conduct of the state agent and the making of the statement by the accused?  For convenience, I arrange these factors into two groups. This list of factors is not exhaustive, nor will the answer to any one question necessarily be dispositive.

The first set of factors concerns the nature of the exchange between the accused and the state agent.  Did the state agent actively seek out information such that the exchange could be characterized as akin to an interrogation, or did he or she conduct his or her part of the conversation as someone in the role the accused believed the informer to be playing would ordinarily have done?

The second set of factors concerns the nature of the relationship between the state agent and the accused.  Did the state agent exploit any special characteristics of the relationship to extract the statement?  Was there a relationship of trust between the state agent and the accused?  Was the accused obligated or vulnerable to the state agent?

In considering whether the statement in question was elicited, evidence of the instructions given to the state agent for the conduct of the conversation may be important. As McLachlin J. noted in Hebert, supra, evidence that the agent was instructed not to initiate the conversation nor to ask leading questions will tend to refute the allegation that the resulting statement was obtained in violation of s. 7.

I would add, however, that in my opinion evidence that the state agent was instructed not to elicit information will not end the inquiry.  The authorities may not take the benefit of the actions of their agent which exceed his or her instructions.  To hold otherwise would be to ignore the fact that the primary emphasis of the right to silence in s. 7 is on the use of the coercive power of the state against the suspect.  The authorities ought not to be able to shield themselves behind the subtleties of their relationship with the informer.  It is the authorities who are in a position to control the actions of their informer; if they fail to do so, they ought not to benefit from that failure at the expense of the accused...’  (emphasis added)

31.  At page 613 of the judgment Iacobucci J stated that in respect of the first set of factors relating to the nature of the conversation, the matters to be considered are whether the undercover agent allowed the conversation to flow naturally, or did he direct the conversation to those areas where he knew the authority needed information.

32.  Broyles was applied in the subsequent Supreme Court of Canada decision of R. v. Liew [1999] 3 SCR 227.  It was also applied by the High Court of Australia in R. v. Swaffield [1998] 192 CLR 159 and also applied in the case of Allan.

33.  I do not consider that the Court of Final Appeal in Lam Tat Ming only applied the first set of factors in Broyles and rejected the second set of factors.  In my view, in defining the Hong Kong law on whether an undercover agent has elicited confession, the Court of Final Appeal definitely did not confine the issue to whether the undercover agent has raised questions equivalent to an interrogation.  The underlined part of the extract from Lam Tat Ming clearly shows that the Court of Final Appeal decided that the relationship between the undercover agent and the defendant is one of the factors to be considered in deciding whether the conversation of the parties was in the nature of an interrogation.

34.  Furthermore, I do not agree that the undercover agent must be a ‘person in authority’, such as a parent, teacher or priest, who has an influence on the defendant.  In my view such a relationship does not need to exist.  This argument is similar to the one raised when the court has to consider if a confession was made before a person in authority in deciding whether it was voluntarily made or not.  In my view, the ‘person in authority’ factor is only appropriate in considering whether a confession is voluntary or not.  Since the direction by the Court of Final Appeal is about how the court should exercise the discretion in respect of confessions which had already been adjudicated to be voluntary, it is therefore not necessary to further consider this point at this stage.  In my view, the most fundamental factor is, as Iacobucci J said, whether there is a relationship of trust between the parties?  It is sufficient if such a relationship exists, such as the undercover agent and the defendant being friends or acquaintances.

Application of the legal principles to this case

Exhibits P13 and P16

35.  P13 and P16 are related to the first charge.  In my view these exhibits should not be accepted as evidence against the 4^thand the 5^thdefendants.  The content of P13 was against the 4^thdefendant while that of the P16 was against the 4^thand 5^thdefendants. The judge summarized the content of P13 as follows:

‘Exhibit P13: On the evening of 18 September 2003, D4 had a telephone conversation with Wong Kwok Leung.  D4 asked about 'Pheasant’ and the underlings of ‘Pheasant’ (paragraphs 18 to 22). D4 said he would find someone who knew the law the following day to visit Yuen Yuen in prison, to inform Yuen Yuen of her rights and to explain to her the consequences of making and not making a statement to the ICAC.  D4 thought that should solve the problem. D4 told Wong Kwok Leung to properly deal with Chu Tsai and Se Tsai, saying that nothing would happen if he could prevent them from talking (paragraphs 24 to 34).  D4 also told Wong Kwok Leung to prevent Chu Tsai and Se Tsai from causing any trouble (paragraph 58). Wong Kwok Leung asked what should be done with the business at Champagne, and D4 said if another lot of people could be found, business could continue and there could still be earnings, but they themselves had to stay behind the scene.  D4 suggested that they should all put their heads together to discuss the matter (paragraphs 41 to 50).’

Exhibit P14: On the evening of 18 September 2003, D3 and D5 separately talked with Wong Kwok Leung on the phone.  It was inconvenient for D5 to talk on the phone, so not much was said (paragraph 10). Wong Kwok Leung told D3 that D4 was thinking about carrying out business at Champagne again.  D3 expressed surprise and said that he had to talk with Wong Kwok Leung immediately, but Wong Kwok Leung refused his suggestion (paragraphs 60 to 66).’

The judge’s summary of P16 is as follows:

‘Exhibit P16: On the late evening of 29 September 2003, D3, D4, D5 and Wong Kwok Leung talked face to face in the Flying Machine Bar in Regal Hotel. The three defendants and Wong Kwok Leung talked about Chu Tsai and Se Tsai. Wong Kwok Leung said he could not find Chu Tsai, and D3 told Wong Kwok Leung to find Chu Tsai’s triad big brother to find Chu Tsai (paragraphs 112 to 134). D3 also asked Wong Kwok Leung whether Chu Tsai’s triad big brother could control Chu Tsai, and D4 was also concerned about this (paragraphs 187 to·204). D4 said he is now clear about all the “foxes” (meaning “prostitutes” according to the explanation given by Wong Kwok Leung in court). D4 said the “foxes” had not said much, and that they would be leaving on October 18. Someone from the solicitors’ firm would also conduct a check then, and if any of the prostitutes has not left, a court order would be sought to secure their departure (paragraphs 205 to 209). D4 said $5,000 had already been spent on engaging lawyers, and if applications had to be made to the court for the prostitutes, $15,000 more had to be spent (paragraphs 271 to 287). D3 mentioned about Ah Kwok (paragraph 293). D3 suspected that there might be a betrayer. D4 said it was Chu Tsai, and one could tell that from his video interview. D4 said the most important thing was to ask Chu Tsai’s triad big brother to control Chu Tsai, otherwise everyone would be facing serious consequences. D3 told Wong Kwok Leung that Wong Kwok Leung could ask Chu Tsai’s triad big brother to put pressure on Chu Tsai, and D4 was worried that Chu Tsai might already have betrayed Wong Kwok Leung (paragraphs 644 to 678). D4 was of the opinion that the ICAC did not have enough evidence at the moment, and when no one was there to give evidence by making a statement, the ICAC could not charge anyone (paragraph 625). Wong Kwok Leung intended to contract out Champagne, and D5 told Wong Kwok Leung that he could make the decision, that there was no need to seek advice, and that the most important thing was to properly deal with Chu Tsai. D4 also said that the most important thing was to properly deal with Chu Tsai. D3 said that if Wong Kwok Leung wanted to find Chu Tsai’s triad big brother, D3 could be approached. He also said that Wong Kwok Leung could find triad big brothers who are even higher up to put pressure on Chu Tsai. D5 said if Chu Tsai could be kept under control, Chu Tsai would dare not say anything (paragraphs 1410 to 1418). Both D3 and D4 said that they had to contact each other using street phones, and that it would be undesirable to use their own mobile phones (paragraphs 1432 to 1437). D3 mentioned that Ah Ning was pressing for payment, and also asked how Yuen Yuen was doing. D4 told D3 not to worry, saying that neither Yuen Yuen nor any of the prostitutes had given any statement to the ICAC. The prostitutes would be sent away on October 18 if they were not giving statements. If they have given statements, they might have to stay. D5 reckoned that much would follow from that. D4 said he would be checking again on October 18 to see if any of the prostitutes was held by the ICAC (paragraphs 1443 to 1466). D4 said that luckily all the women who were captured by the ICAC on photo/video when the ICAC was following them are now on the mainland, otherwise there would be trouble (paragraph 1516).’

36.  The judge was of the view that the conspiracy under the first charge came to an end when the ICAC raided Champagne Court on 8 September 2003 and that even if there was discussion afterwards about reviving the operation of Champagne this was in respect of another conspiracy.  But at the same time the judge definitely had relied upon P13 and P16 to convict the 4^thand 5^thdefendants.  At para. 410 of the judgment he stated that:

‘D3 said in court, and Counsel for D4 and D5 also stated, that what the three of them invested in was a legitimate guesthouse that charged on an hourly or daily basis, and that they immediately withdrew their shares when they became aware that there was something wrong with Champagne. I do not believe that was the situation. D4’s suggesting in the audio recording about carrying on with the business at Champagne, D3’s expressing anxiety and D5’s telling Wong Kwok Leung to decide by himself are all inconsistent with this statement or allegation. According to the audio recording, all three of them were aware that the “foxes” (that is prostitutes) have long existed at Champagne. It is definitely not the case that they only became aware of the situation when Wong Kwok Leung brought it up.’

Causal connection

37.  As the offence under the first charge was already completed on 8 September when the 2^nd, 3^rdand 4^thdefendants were arrested, the direction given by the Court of Final Appeal in Lam Tat Ming is applicable to the present case.  The ICAC admitted that on 9 September 2003 the evidence against the 3rd and 4^thdefendants were rather weak and since it did not have sufficient evidence to prosecute them it would require the assistance of Wong Kwok Leung to gather evidence.  ICAC instructed Wong Kwok Leung to raise the issue about the tenancy of Champagne Court when he called the 4^thdefendant on 18 September.  Wong Kwok Leung himself admitted under cross-examination that he and the 4^thdefendant were good friends and he was using the friendship between him and the other defendants to elicit evidence.  Although Wong Kwok Leung said that the instruction given to him by ICAC was to listen as much as possible to what the defendants said, from the above one can see that the ICAC did instruct Wong Kwok Leung to raise certain topics with the defendants so that he could elicit the evidence when they discussed these topics.  In my view even though the conversation between Wong Kwok Leung and the other defendants were not strictly similar to the method of interrogation, what is certain is that he had directed the conversation to topics which the ICAC required information.  Further the defendants talked without reservation in front of Wong Kwok Leung because of their friendship with him.  In other words, Wong Kwok Leung was using his close relationship with the other defendants to elicit their evidence.  The evidence relied upon by the judge against the defendants was the responses they made to topics raised by Wong Kwok Leung under the instruction of ICAC.  The conduct of Wong Kwok Leung and the statements by the defendants have a direct causal connection.  This fulfills the definition of eliciting evidence and the prosecution adopted this method to undermine the right of silence of the defendant.  The Court must refuse to accept this evidence.  Although only a small part of P13 and Pl6 was concerned with the first charge and the content was mainly concerned with the sixth charge, the overall content of these two statements has a close and inseparable link with the first charge.  I consider that these exhibits should not be accepted as evidence in support of the first charge.

Wong Kwok Leung

38.  Wong Kwok Leung agreed to assist ICAC because he did not wish to be prosecuted.  He had a triad background.  He was a stained witness.  The Court has to be particularly careful in considering the evidence of this type of witness.  Although, if after careful consideration of the facts of the case, the Court still regards his evidence to be truthful and substantial, it can, of course, rely on his evidence.  But in this case the judge when considering the evidence of Wong Kwok Leung made two mistakes.  First, as indicated above, he wrongly accepted Exhibits P13 and P16 as evidence in respect of the first charge.  Second, he made a mistake when he assessed the evidence of the 3^rd defendant. The 3^rd defendant chose to give evidence to defend himself.  At para. 396 of the judgment the judge said, ‘the 3^rd defendant remained silent when he was at the ICAC, this was his right, but what is strange is that he asked Wong Kwok Leung to tell ICAC everything.  Although he himself is an investigating officer he adopted the ‘silence is golden’ approach when he faced the ICAC but ‘talked fluently and loudly’ when he was in court’.

39.  This Court in HKSAR v. Mui Ting Tat, CACC 320 of 2004 held that:

‘The law of Hong Kong clearly stated that the defendant in a criminal case has the right to remain silent. The Court of Final Appeal in Lee Fuk Hing [2004] 7 HKCFAR 600 held that the law gives the defendant the right to remain silent and it would be extremely inappropriate if such a right is being used to put the defendant into an unfair position. The Court of Final Appeal pointed out that the law gives the defendant this right and usually a police officer would remind him of this right when caution is administered. It is unfair to a person who exercises this right of silence to be put against him at the trial, for example, by allowing the prosecution to cross-examine him on this topic or to make comments.’

40.  The judge was also the trial judge in Mui Ting Tat (the appeal decision of Mui Ting Tat was only delivered after this case was concluded).  In that case when he assessed the evidence of the defendant he also made similar comments.  He said that when the defendant was arrested by the police he had ‘no response to make’.  In that case this Court was of the view that the judge did not in substance apply the right of silence, it was against the principle set out in Lee Fuk Hing namely, the right of silence exercised by the appellant should not put him at an unfair position at the trial.  For the same reason I consider the judge had ignored this important principle in the present case.  This directly affected his assessment of the 3^rddefendant’s evidence.  The 3^rd, 4^thand 5^thdefendants raised the same·defence.  The mistake resulted in the judge not being able to make a full assessment of the evidence of Wong Kwok Leung.  Under these circumstances the conviction of the 3^rd, 4^thand 5^thdefendants which was based on the judge’s reliance of Wong Kwok Leung’s evidence was unsafe and unsatisfactory.  The conviction by the 4^thand 5^thdefendants of the first charge must be quashed.

The sixth charge

41.  In respect of the sixth charge faced by the 4^thdefendant, Wong Kwok Leung did not give oral evidence.  The prosecution relied on the recorded conversation between Wong Kwok Leung and the defendant.  The evidence included the recorded conversations in P13 and P16 but the basic evidence came from exhibits P13 and P16. In my view, first of all, the recording of the conversation was in breach of the Basic Law and the Bill of Rights.  I have given my reasons earlier.  However, this does not mean that the evidence in respect of the sixth charge must be rejected.  The period covered by this charge was from 11 to 30 September 2003.  This offence had not been completed when Wong Kwok Leung had the conversation with the 4^thdefendant.  The guideline given by the Court of Final Appeal is not applicable to this evidence.  When the 4^thdefendant was charged by the ICAC on 8 September the offence did not include perverting the course of justice.  I do not accept that the right of silence exercised by the 4^thdefendant in respect of the prostitution offence would extend to offences which had not yet occurred.  This is similar to an absolute right of silence.  This is not the law that is applicable to Hong Kong or should be adopted in Hong Kong.  In R. v. Hebert [1990] 2 SCR 151 McLachlin J of the Supreme Court of Canada at page 183 refused to accept the absolute right of silence argument.

42.  In my view the recorded conversation relating to the sixth charge can be accepted as evidence.  Its content is sufficient to convict the 4^thdefendant. Accordingly, I will refuse the 4^thdefendant’s application for leave to appeal against the conviction of the sixth charge.

The first defendant

43.  As to the 1^st defendant, the evidence against him in respect of the second charge and the fourth charge came from the recording by the ICAC of the conversation between PW7 Ho Yiu Choa and the 1^st defendant between 18 June 2003 and 8 September 2003.  For the same reason I have given earlier the recording of the conversation was against the Basic Law and the Bill of Rights.  But in my view, the content of the conversation could be admitted as evidence because at that time the 1^st defendant had not been arrested.  He had never exercised his right of silence.

44.  Mr. Hectar Pun, counsel for the 1^st defendant, submitted that this Court does not have sufficient material to exercise the discretion and he asked us not to deal with this issue. He further said that if this Court should exercise the discretion then the recorded conversation should be rejected.  He relied on the following two cases.  In Mohammed (Allie) v. State of Trinidad and Tobago [1992] 2 AC 111 Lord Steyn made the following comment:

‘On the other hand, it is important to bear in mind the nature of a particular constitutional guarantee and the nature of a particular breach. For example, a breach of a defendant’s constitutional right to a fair trial must inevitably result in the conviction being quashed. By contrast the constitutional provision requiring a suspect to be informed of his right to consult a lawyer, although of great importance, is a somewhat lesser right and potential breaches can vary greatly in gravity. In such a case not every breach will result in a confession being excluded. But their Lordships make clear that the fact that there has been a breach of a constitutional right is a cogent factor militating in favour of the exclusion of the confession. In this way the constitutional character of the infringed right is respected and accorded a high value. Nevertheless, the judge must perform a balancing exercise in the context of all the circumstances of the case. Except for one point their Lordships do not propose to speculate on the varying circumstances which may come before the courts. The qualification is that it would generally not be right to admit a confession where the police have deliberately frustrated a suspect’s constitutional rights.’ (emphasis added)

In People v. Healy [1990] 2 IR 73, the Supreme Court of Ireland in considering the principles relating to the phrase ‘deliberate and conscious’, held that the motive of the party who made the deliberate and  conscious step is irrelevant, in particular, it is immaterial whether he was aware that his action obstructed the constitutional right of the defendant.

45.  In my view, this Court has sufficient information to exercise the discretion because irrespective of the motive of ICAC in instructing the undercover agent to secretly record his conversation with the 1^st defendant, the most obvious fact is that at that time Hong Kong did not have any legal procedure to regulate the action of secret recording.  It is not necessary for me to examine in detail the reasons why the Government did not comply with the requirement of the Basic Law to promulgate the legal procedure because ultimately what the Court has to consider is that during the period of secret recording, Hong Kong did not have any legal procedure in place regulating this type of action.  In the circumstances even if the case is to be remitted to the trial judge there will not be too much difference in the material that he and this Court would have to consider.  Accordingly I am of the view that this Court can exercise the discretion.

46.  Mohammed (Allie) and Healey are highly persuasive authorities but in my view one should consider the individual facts of the case in deciding whether to accept evidence which has been obtained in breach of the fundamental right of the citizens.  In these two cases, the fundamental right that the governments had infringed was a deliberate refusal to let the defendant meet his lawyer.  This is an extremely serious breach.  In those circumstances, the refusal by the courts to accept the evidence was correct.  But this does not apply to the present case, particularly when the 1^st defendant was still being investigated, had not indicated that he would exercise his right of silence and the offence had not yet been completed.  In the circumstances the Court should accept the recorded conversations.  This recorded conversation was obviously sufficient to convict the 1^st defendant.  Therefore I would refuse the application by the 1^st defendant.

Hon Yeung JA:

Introduction

47.  There are 5 defendants in this case.  Apart from the 3 applicants Lam Hon Kwok, Popy (D1), Kam Kwok Cheung (D4) and Jim Fai Keung (D5); the other two defendants are Leung Kwong Yin (D2) and Cho Ming Sum (D3).  D1, D3, D4 and D5 were all serving police officers before their convictions, D2 is an ex-customs officer.

48.  D1 faced 4 charges, including the 2^nd charge of conspiracy to live on the earnings of prostitutes, the 3^rd charge of inciting others to conspire to live on the earnings of prostitutes, the 4^th charge of inciting others to conspire to rob, and the 5^th charge of possession of prohibited weapons.  D1 pleaded guilty to the 5^th charge of possession of prohibited weapons, but denied all other charges.

49.  D2 faced the 2^nd charge and the 4^th charge, he denied both charges.

50.  D4, D5 and D3 all faced the 1^st charge of conspiracy to live on the earnings of prostitutes, D4 and D3 also faced the 6^th charge of conspiracy to pervert the course of justice.  They all denied the charges.

51.  The case was tried in the District Court before Deputy Judge Lam Wai-kuen, Josiah (“the trial judge”). The trial commenced in mid-July 2004, and lasted until December 2004.

52.  It took the trial judge 2 days to deliver the judgment, from 6 December to 7 December 2004.  Dl was convicted on the 2^nd and 4^th charges, but acquitted on the 3^rd charge.  In respect of the 2^nd and 4^th charges, Dl was sentenced to a total of 37 months’ imprisonment.  In respect of the 5^th charge of possession of prohibited weapons, Dl was fined 2,000 dollars.

53.  D2 was convicted on the 2^nd charge and sentenced to 8 months’ imprisonment, but he was acquitted on the 4^th charge.

54.  D4 was convicted on the 1^st and 6^th charges, D5 was convicted on the 1^st charge.  They were sentenced to imprisonment for 34 months and 11 months respectively.

55.  D3 jumped bail and did not show up when the trial judge was delivering the judgment, but the trial judge still convicted him on both the 1^st and 6^th charges in his absence, and sentenced him to a total of 34 months’ imprisonment.

56.  Dl and D5 were aggrieved about the convictions, and asked this court for leave to appeal against conviction.  D4 was aggrieved about both the conviction and the sentence, and had applied to this court for leave to appeal against conviction and/or sentence.  However, at the hearing, D4 indicated that he would abandon his appeal against sentence, and that application was dismissed accordingly.  This court now only has to deal with his application for leave to appeal against conviction.

57.  Dl, D4 and D5 are represented by their counsel Mr Hectar Pun, Mr Thomas Iu and Mr Newman Wong respectively.

The prosecution’s allegations and evidence

58.  In the beginning of 2003, whilst officers of the Independent Commission Against Corruption (“ICAC”) were making enquiries into a suspected offering/receiving advantages case, they suspected that there were police officers involved in the sex trade by operating “one-woman brothels”.  Subsequently, the ICAC arrested a key member Mr Ho Yiu Choa, an ex-police officer who served in the police force between 1976 and 1999.

59.  Ho Yiu Choa agreed to supply information and assist in the ICAC’s enquiries, and if necessary, to testify against the defendants in court; in exchange for immunity from prosecution for his involvement in the sex trade and the offence of offering advantages.

60.  Between June and September 2003, Ho Yiu Choa and Dl met on many occasions in restaurants and other eateries, they also talked over the phone.  Ho Yiu Choa said during their conversations, D1 revealed that he was a shareholder in a “one-woman brothel” business.  There were many regular customers and the services of prostitutes were required.  D1 incited Ho Yiu Choa and his friend “Xiaoxue” to arrange for prostitutes to come to Hong Kong to work in the “one-woman brothels” in Tsim Sha Tsui.  They have had detailed discussions on the recruitment of prostitutes and the distribution of the proceeds from prostitution on a number of occasions.  In their subsequent conversations, D1 expressed his intention of “earning quick money”, and incited Ho Yiu Choa to rob the banks or petrol stations.

61.  D1 instructed Ho Yiu Choa to reconnoitre the banks and work at the petrol stations, so as to collect information for the purpose of the robbery.  D1 even told Ho Yiu Choa that firearms could be bought from Shen Zhen, and when the robbery took place, he would wear a helmet and ride a motorcycle to render assistance.

62.  Through the ICAC’s arrangements, Ho Yin Choa taped some of the conversations he had with D1.  The audio tape records have become exhibits P1 to P11.

63.  The aforesaid allegations constitute the 3^rd and 4^th charges against D1, namely, conspiracy to live on the earning of prostitutes and inciting others to conspire to rob.  Evidence supporting the two charges mainly comes from Ho Yin Choa and exhibits P1 to P11.

64.  The vice establishments involved in this case are “one-woman brothels” situated at Room 1-5, 8/F, Block D, Champagne Court, Tsim Sha Tsui (“the Champagne establishments”).

65.  On 8 September 2003, ICAC officers searched the Champagne establishments.  They arrested several prostitutes and 2 persons who managed the establishments, they are Tse Chun Wai (“Chu Tsai”) and Lee Yiu Ming (“Se Tsai”).  The defendants were also arrested by the ICAC on the same day or early the next morning at different locations.

66.  The Champagne establishments were operated by another key prosecution witness Wong Kwok Leung.  Wong Kwok Leung was arrested on 8 September 2003.  After the arrest, he made no confessions.  However, he later expressed to the ICAC his intention to turn prosecution witness, in exchange for immunity from prosecution.

67.  Consequently, Wong Kwok Leung was granted immunity from prosecution by the Department of Justice.  In return, he agreed to supply information, to assist in the ICAC’s enquiries and assist in collecting evidence, and if necessary, he would testify against the defendants in court.

68.  In the course of giving evidence, Wong Kwok Leung gave a detailed account about the operation of his prostitution business and how he came to know the 5 defendants.  Wong Kwok Leung said he initially agreed to operate the “one-woman brothel” sex business in Wing Lee Building together with D4 and his friend.  Each of them contributed 20,000 dollars towards the capital.  However, D4’s friend withdrew from the partnership soon afterwards.  Later, Wong Kwok Leung came to know D5 through D4, and then D3 through the introduction of D5.

69.  The sex business in Wing Lee Building ceased after only about 2 months.  In June 2003, after the vice establishments in Wing Lee Building were closed down, Wong Kwok Leung moved his “one-woman brothel” sex business to the Champagne establishments.

70.  Wong Kwok Leung said that D3, D4 and D5 were all involved in the operation of the Champagne establishments operated by him and received their shares of the proceeds.  They contributed towards the capital, directly or indirectly arranged for or introduced prostitutes to come to work in Hong Kong, and received commission for introducing prostitutes.  Wong Kwok Leung said he came to know D1 around May or June 2003 through D4.  Subsequently, D1 introduced “chicken heads” to him, so that prostitutes could be supplied to him for working in Hong Kong.  Some time later, Dl indicated that he was in dire financial situation, and indicated his intention to directly introduce prostitutes to work at the Champagne establishments, so as to earn commission.  Eventually, D1 introduced a prostitute called “Yuen Yuen” to work there, and received a total of 5,000 dollars in commission. D1 also introduced D2 to Wong Kwok Leung, and indicated that D2 would supply prostitutes to work at the Champagne establishments to earn commission.

71.  Wong Kwok Leung was granted bail on 10 September 2003, after he had agreed to assist the ICAC in its investigation and assist in collecting evidence.  He remained in contact with D1, D4 and D5, and the ICAC was aware of that.  Wong Kwok Leung said they had talked about how to deal with the ICAC investigation and the Champagne establishments.

72.  Wong Kwok Leung also pointed out that D3 and D4 had asked him, “Chu Tsai” and “Se Tsai” not to spill the beans to the ICAC.  They also discussed about some relevant arrangements, including the hiring of lawyers, the purpose was to prevent the arrested prostitutes from co-operating with the ICAC.  D4 suspected that “Chu Tsai” was a traitor, so he asked Wong Kwok Leung to exert pressure on the big brother of “Chu Tsai” in the triad society to exercise control on “Chu Tsai”, and stopped him from giving evidence against them.  When Wong Kwok Leung asked D4 how to deal with the business of the Champagne establishments, D4 said that they could continue to derive income from the business at the Champagne establishments by getting some other people to operate it, but he himself could not show his face again.

73.  Most of the conversations Wong Kwok Leung had with Dl, D3, D4 and D5 were taped under the arrangements of the ICAC, including their conversations in bars and restaurants and their telephone conversations.  The relevant audio tape records have been produced as P12 to P16.

74.  The aforesaid allegations constitute the 1^st charge against D4, D3 and D5 as well as the 2^nd charge against Dl and D2, namely, conspiracy to live on the earning of prostitutes.  They also constitute the 6^th charge against D4, namely, conspiracy to pervert the course of justice.

75.  Apart from Ho Yiu Choa and Wong Kwok Leung, the prosecution also called “Chu Tsai”, “Se Tsai” and a number of ICAC officers to give evidence.  Audio tape records of conversations between Ho Yiu Choa, Wong Kwok Leung and various defendants were also produced as evidence.

The defence’s stance and evidence

76.  During the trial, the defence objected to the production of the audio tape records as evidence, pointing out that the investigative tactics of the ICAC were unfair to the defendants, as they infringed their right of silence.  The court should therefore exercise its discretion to exclude the audio tape records.

77.  The defence also pointed out that the first audio tape record of the conversation between Ho Yiu Choa and D1 was incomplete, a sign that the ICAC was hiding the truth, which had called into question the integrity of the ICAC officers.  Therefore, all the tape recording of conversations in this case should be excluded.

78.  D3, D4 and D5 said they only participated in Wong Kwok Leung’s daily rate and hourly rate guesthouse business, not the “one-woman brothel” sex business.  When they discovered that there was somethingwrong with Wong Kwok Leung’s guesthouse business soon afterwards, they immediately withdrew from the business and got their investment back.

79.  The defendants said Ho Yiu Choa and Wong Kwok Leung told lies and made false allegations against them in order to save their own skin. They also pointed out that Ho Yiu Choa was not a reliable witness.  Therefore, the alleged conversations between the defendants and him (which were not recorded) should not be admitted as evidence.

80.  D1, D4 and D5 did not give evidence in their own defence.  They only called an expert to say that the aforementioned first audio tape record was not properly made, and there were no other defence witnesses.  However, they did offer their explanations with regard to the wrongful acts as alleged by the prosecution through their counsel during cross-examination.  They denied having arranged for prostitutes to come to work in Hong Kong.  They also denied that they shared in the proceeds from the Champagne establishments.  They said that both Ho Yiu Choa and Wong Kwok Leung were unreliable witnesses.  D1 also said that when he talked about the topic of robbery with Ho Yiu Choa, he was only waffling about it.  In fact, the inappropriate topic was brought up by Ho Yiu Choa, D1 just waffled in response. D2’s counsel also pointed out that Ho Yiu Choa bore a grudge against D1, because D1 had told on his younger brother who was working in the police force. He thus made such allegations to take revenge on D1.

81.  During the trial, D3 was the only defendant who gave evidence in his self-defence.  He reiterated the defence raised by D4, D5 and himself, namely, they were under the belief that Wong Kwok Leung was operating the daily rate or hourly rate guesthouse business, instead of the vice establishment business.  D3 said he consumed a lot of alcohol during the meeting with Wong Kwok Leung in the bar, so he could not remember all the conversations.  He did say words to the effect that he was concerned about “Chu Tsai” and “Se Tsai”, but his only purpose was to assist Wong Kwok Leung.  It did not mean that he had participated in the operation of the vice establishments, still less conspired to pervert the course of justice.

The findings of the trial judge

82.  The trial judge noted that apart from the first audio tape record of the conversations between Ho Yiu Choa and D1, all the other tape recordings of conversations were complete.  The defence also agreed that they were accurately and properly recorded.  The trial judge concluded that what arose from the evidence of Ho Yiu Choa and Wong Kwok Leung and the tape recordings of the conversations was the question of reliability, not the question of admissibility.

83.  The trial judge ruled that all the tape recordings should be admitted as evidence, because during the conversations, Ho Yiu Choa and Wong Kwok Leung did not breach the rules by cross-examining the defendants.  Therefore the defendant’s right of silence was not infringed.

84.  The trial judge rejected the argument that “conversations that were not recorded cannot be produced as evidence”.  He also dismissed the suggestion that tape recordings which were unintelligible should not be produced.

85.  The trial judge rejected D3's evidence.  He noted that D3 was not an honest witness, one of the reasons is that he did not disclose his defence whilst he was under investigation by the ICAC.  The trial judge made the following remarks on D3’s evidence:

“Regarding (Cho), he gave a detailed account in respect of the ordinary matters, but on all these issues, he didn't mention a word to the ICAC. (Cho) remained silent at the ICAC, it is his right. The curious thing is, while he asked Wong Kwok Leung to give a full explanation to the ICAC, he didn't say a word to the ICAC, although he is an investigator himself. However, once he was in court, he became assertive.”

86.  The trial judge found that Ho Yiu Choa was not an honest witness, so he could not convict D1 by solely relying on Ho’s evidence.  As evidence of the 3^rd charge against Dl all came from Ho Yiu Choa, the trial judge had to find D1 not guilty on that charge.

87.  The trial judge pointed out that “Chu Tsai” had a poor memory, and the evidence of “Se Tsai” had no value, so their evidence should be excluded.  On the other hand, he found that Wong Kwok Leung, the ICAC officers and the expert called by the prosecution were all honest and reliable witnesses, and the relevant tape recordings of the conversations were accurate, reliable and could be relied upon.

88.  On the basis of Wong Kwok Leung's evidence and the relevant tape recordings of conversations, the trial judge found that D3, D4 and D5 had all participated in the sex business of the Champagne establishments, and had shared in the proceeds from the Champagne establishments, so he found them guilty of the 1^st charge.

89.  The trial judge also believed that Dl and D2 had agreed with Wong Kwok Leung to introduce prostitutes to come to Hong Kong for prostitution, and drew commission from the earnings of the prostitutes, so he found D1 and D2 guilty of the 2^nd charge.

90.  According to the relevant tape recordings, the trial judge concluded that D1 did incite Ho Yiu Choa to commit robbery, it was not mere “bluffing”.  Furthermore, D3 and D4 did make the arrangements, such as sending a lawyer to visit the arrested prostitutes, and asking the big brother of “Chu Tsai” in the triad society to exert pressure on “Chu Tsai”, so that they did not have the opportunities or would not give statements to the ICAC or assist the ICAC in its investigation, with the ultimate purpose of protecting themselves.  So he found D1 guilty of the 4^thcharge of inciting others to conspire to rob and found D3 and D4 guilty of the 6^thcharge of conspiracy to pervert the course of justice.

The applicants’ grounds of appeal

91.  Apart from dealing with their own specific grounds of appeal, counsel for the applicants also relied on each other’s grounds.  Most of the applicants’ grounds of appeal are identical, and can be dealt with together.

92.  Grounds of appeal applicable to all the applicants can be summarised as follows:

(1) The tape recording of the conversations Ho Yiu Choa and Wong Kwok Leung had with the applicants is evidence obtained through covert audio surveillance activities, thus in breach of the freedom and privacy of communication protected and conferred on the Hong Kong citizens by Article 30 and Article 39 of the Basic Law and Article 27 of the International Covenant on Civil and Political Rights.  It also infringes the right of silence of the applicants.  However, in considering whether to admit the above evidence, the trial judge failed to take into account the relevant provisions in the Basic Law and the International Covenant on Civil and Political Rights, thereby erroneously admitted the audio tape recordings into evidence.

(2)     The trial judge found that the audio tape records did not infringe the applicants’ right of silence and admitted the audio tape records into evidence, without giving due considerations to the relevant legal principles, nor did he exercise his discretion properly, resulted in unfairness to the applicants.

(3)     If the above-mentioned tape recording evidence were excluded, the court will not be able to convict any of the applicants solely on Wong Kwok Leung’s evidence.  The reasons are: Wong Kwok Leung is a man of extremely low moral character, he has an improper motive, and will tell lies and make false allegations against the applicants to save his own skin.

93.  Counsel Mr Thomas Iu stressed that the trial judge had categorically stated that he would not take into account the relevant tape recordings when he considered the 1^st charge.  Mr Iu emphasized that Wong Kwok Leung’s evidence could not be believed at all, as there were too many discrepancies.  So Wong Kwok Leung’s evidence alone was insufficient to support the 1^st charge.  Mr Iu also submitted that the trial judge erred in his manner of dealing with D3’s credibility.  He noted that D3 only gave evidence and offered his explanations at the trial, but elected to exercise his right of silence when he was under investigation.  It is on that basis that the trial judge rejected D3’s evidence, rather than on the basis of his demeanours whilst giving evidence, thus in breach of the principle laid down in R v Chan Kung-ling [1991] 2 HKC 158.

94.  Mr Iu stressed that in so far as D3’s evidence was likely to be true, it would cast doubt on the 1^st charge which D4 faced, as D3 and D4 ran the same defence.  Moreover, D4’s counsel did not cross-examine D3 at the trial, indicating that D4 had adopted D3’s evidence.

95.  D5’s counsel Mr Newman Wong also submitted that the trial judge should not have attached too much importance to the factors set up by the Court of Final Appeal in Secretary for Justice v Lam Tat Ming & Another (2000) 3 HKCFAR 168, and neglected the fact that D5 had categorically elected to exercise his right of silence after his arrest.  Mr Wong submitted that by using Wong Kwok Leung as an undercover agent to extract confessions from D5, the ICAC did not only infringe on D5’s right of silence, it also brought the administration of justice into disrepute.  According to the principle laid down by the Court of Appeal in R v Lee Yi Choi [1985] 1 HKC 578, those confessions should be excluded.

Discussion

96.  If the court accepted that Wong Kwok Leung's evidence and the relevant audio tape recordings were true and accurate, there would obviously be sufficient evidence to support the convictions of the applicants.  Counsel for the three applicants did not dispute that.

97.  Article 30 of the Basic Law of Hong Kong expressly states that the freedom and privacy of communication of Hong Kong residents shall be protected by law.  Article 39 also stipulates that the provisions of the International Covenant on Civil and Political Right as applied to Hong Kong shall remain in force.

98.  Article 14 of the Hong Kong Bill of Rights Ordinance, which is identical to Article 17 of the International Covenant on Civil and Political Rights, also stipulates that:

“Protection of privacy, family, home, correspondence, honour and reputation -

(1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

(2) Everyone has the right to the protection of the law against such interference or attacks.”

99.  The freedom and privacy of communication conferred on the Hong Kong residents by law are extensive, clear and unambiguous.  In Leung Kwok Hung v Chief Executive of HKSAR HCAL No.87 of 2005, CACV 73/2006 and CACV 87/2006, HKSAR v Chan Kau Tai CACC 26/2004, the court has given clear ruling on this subject: unless it is for the purpose of meeting the needs of public security or of investigation into criminal offences and in accordance with legal procedures, otherwise, any acts which intrude on the freedom and privacy of communication must be regarded as unconstitutional (see Leung Kwok Hung mentioned above).

100.  Although the Hong Kong Bill of Rights Ordinance and the Basic Law have been implemented in Hong Kong from 1991 and 1997 respectively, the legislature of Hong Kong has yet to formulate the relevant legal procedures to enable the law enforcement agencies to intrude on the freedom and privacy of communication of the citizens legitimately on the basis of public security and investigation into criminal offences.  And the report of the Law Reform Commission of Hong Kong on “Privacy: The Regulation of Covert Surveillance” was only issued in March 2006.

101.  This case does not involve the direct or indirect audio surveillance of the private communication of the applicants or other people by the ICAC.  The ICAC did not install any video or audio surveillance devices in the residences or offices of the applicants, to make covert recording of the acts or conversations of the applicants or other innocent parties.  Nor did the ICAC covertly intercept the conversations of the applicants or other innocent parties by means of “phone-tapping”. What the ICAC did was to audio tape the conversations of the applicants through Wong Kwok Leung and Ho Yiu Choa, when the applicants were relating to them about criminal activities.  The purpose is to assist the ICAC in working investigations and bringing prosecutions.

102.  Senior Government Counsel Mr Simon Tam submitted on behalf of the respondent that the ICAC's action did not infringe on the applicants' right to freedom and privacy of communication. Mr Tam stressed that Wong Kwok Leung and Ho Yiu Choa also had freedom of speech, and had the freedom to receive and disseminate information.  Mr Tam also emphasized that the applicants disclosed their completed or ongoing criminal activities to Wong Kwok Leung and Ho Yiu Choa voluntarily, and Wong and Ho were entitled to repeat the applicants’ confessions to others, and to tape the conversations as evidence.

103.  Mr Tam referred to a number of English cases to support his stance.  In R v Bailey & others [2001] EWCA 733, the defendants mistakenly believed that the undercover police officers were accomplices, and would keep the secrets for them.  So they told the police officers about their criminal enterprise in their home.  Not only did the undercover police officers make a record of their conversations in their note-books, they also taped the conversations with a concealed tape recorder.  The English Court of Appeal ruled that the production of the records as evidence by the undercover police officers did not infringe on the privacy of the defendants, rather, it was a just and reasonable act.  What the undercover police officers did made it possible for a reliable and accurate record to be kept in respect of the conversations.  The Court of Appeal specifically pointed out that witnesses were entitled to use every means to refresh their memory of the relevant events, and those means should not be confined to written records.  If modern technologies could provide better means to refresh the memory of the witnesses, the court should not resist those technologies.  On the other hand, if the undercover police officers made the records by other means, which resulted in the records being incomplete and inaccurate, they would be criticized.  Therefore, there was nothing wrong for the undercover police officers to record the relevant conversations by means of modern technologies and produced them as evidence.

104.  The English Court of Appeal also specifically stressed that the case did not involve covert interception of private communications, nor did it involve the installation of surveillance recording devices in the defendants’ house.  It was just a case of undercover police officers recording their conversations with the defendants, as one of the means of detecting crimes.

105.  Mr Tam also relied on Campbell v MGN Ltd [2004] 2 AC 457, which stated that to decide whether a person's privacy had been infringed upon, the court must first decide whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy.  Mr Tam stressed that when someone was talking about criminal offences, it involved not only privacy, but also the issue of public interest.  He stressed that there was difference in the extent of the protection provided by law to different types of private information, because when considering the question of privacy, the court must also have regard to freedom of speech and public interest.  Mr Tam observed that the central issue was whether a democratic and free society should give legal protection to certain private information, so that the information would not be divulged when it was not to the public advantage.

106.  Mr Tam submitted that the applicants could not have any reasonable expectation that Wong Kwok Leung and Ho Yiu Choa would not divulge their conversations which constituted offences, because the contents of the conversations were not private information protected by law, and the taped conversations had nothing whatsoever to do with the privacy of the applicants.

107.  Counsel Mr Hectar Pun agreed that to decide whether a person's privacy had been infringed upon, consideration must be given to whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy.  Mr Pun referred to Chan Kau Tai, pointing out that the scope of privacy was very wide, which included the right to be free fromthe attention of other people in the society or the public, and the right not to be free from disturbance or intrusion.

108.  Mr Pun also referred to a number of decisions of the Supreme Court of Canada, including R v Duarte [1990] SCR 30 and R v Wong (1990) 60 CCC (3d) 460, to support his own arguments.

109.  Mr Pun pointed out that the logical deduction in Bailey as cited by Mr Tam had been rejected in Duarte.  And in Wong, it was further stated that everyone could have the reasonable expectation that his conversations with others and his acts would not be subjected to the covert surveillance and recording by the undercover agents of the state.  Mr Pun stressed that a reasonable expectation would not become unreasonable because the contents of the conversations involved criminal activities.  The important thing in a reasonable expectation was the expectation, it was not an assessment of risks.

110.  In Duarte, La Forest J of the Supreme Court of Canada noted that as a matter of logic, there was no distinction between the electronic surveillance carried out by a participant in the conversation and one that was carried out by a third party, and an individual's reasonable expectation of privacy would not differ according to the places where the recording devices were kept.  La Forest J stated that so long as the speaker had a reasonable expectation that his words would only be received by the interlocutor, all unauthorised covert electronic recording of the conversation would be an infringement on the reasonable expectation of confidentiality, even when it was carried out by the interlocutor.  La Forest J went further to say that the speaker must bear the risk that the words would be divulged by the interlocutor, but that could not be compared to the risk of having a permanent electronic recording made of the words.

111.  Mr Pun also relied on Allen v UK (2002) Application No. 48539/99; Canadian cases mentioned in the judgment of the European Human Rights Court: R v Hebert [1990] 2 SCR 151, R v Broyles [1991] 3 SCR 595, R v Liew [1999] 3 SCR 227; and an Australian case R v Swaffield and Pavic [1998] HC of A1 etc.

112.  In the aforesaid cases, the main issue considered by the court is the safeguard of the right of silence of the suspects.  The courts ruled that if confessions were extracted by the law enforcement agencies through trickery after the normal investigation process had failed to yield any results, the confessions were made involuntarily and should be excluded, otherwise, there would be a miscarriage of justice.

113.  Different societies deal with the infringement of the right of privacy differently, as their history, customs, culture and legal provisions are not the same.  The stance adopted by the English Court of Appeal in Bailey regarding covert recording by a participant in the conversation is obviously different from the stance adopted by the Supreme Court of Canada in Duarte. This divergence is not something that can be solved by logical deduction.

114.  However, I am mindful of the fact that there are well-established legal procedures in Canada regulating the “audio surveillance” activities of the law enforcement agencies, section 178.11 of Part IV.I of the Criminal Code of Canada even criminalizes unauthorised covert recording activities. The section stipulates that:

“Everyone who, by means of an electromagnetic, acoustic, mechanical or other device, wilfully intercepts a private communication is guilty of an indictable offence and liable to imprisonment for five years.”

115.  The Canadian police normally cannot carry out electronic surveillance without the authorisation from a High Court judge.  And even when authorisation is granted, the Canadian police must strictly abide by the conditions set out therein when they carry out the surveillance.

116.  Under the circumstances mentioned above, it is understandable that the Supreme Court of Canada ruled that the speaker had a reasonable expectation that the words would only be received by the interlocutor instead of being recorded by concealed electronic devices.

117.  The recording of conversations by concealed devices is not criminalized in Hong Kong.  In fact, even though the Bill of Rights and the Basic Law have been in force in Hong Kong for a number of years, the question whether it is unconstitutional for the law enforcement agencies to record criminal activities covertly by various means has aroused the concern of the society only recently.

118.  Maybe it is easy to be wise after the event, some of the covert recording activities of the law enforcement agencies are plainly unconstitutional.  Chan Kau Tai is a case in point.  The ICAC installed recording devices in the defendant’s office to record his activities without his knowledge.  It is obviously an unconstitutional and improper act of covert surveillance.  However, it is controversial whether it is unconstitutional to conceal the device on the person of the “undercover agent” and secretly record the defendant’s conversations with the agent.  This issue has aroused the concern of various sectors, including the legal sector only after 2005.

119.  In Secretary for Justice v Lam Tat Ming & Another (2005) HKCFAR 168, the court also dealt with the covert recording by law enforcement agencies through undercover agents of the defendant’s words which constituted criminal offences.  Among the undercover agents in that case, some were the defendant's accomplices, there was also an ICAC investigator who posed as a member of the triad society.  They secretly tape recorded the defendant’s words which constituted criminal offences, and produced them in court as evidence.  Since both the prosecution and the defence did not rely on any provisions of the Basic Law and Bill of Rights, the Court of Final Appeal did not touch on the issue of whether the aforesaid covert recording activity was unconstitutional.  The Court of Final Appeal followed the established Common Law principles and ruled that the court should not reject the spontaneous confessions of the defendant merely on the ground that the covert surveillance evidence was obtained through undercover agents. The Court of Final Appeal also found that the covert recording activity by undercover agents might have been reasonable and necessary.

120.  During the trial, both the prosecution and the defence did not touch on the issue of whether it was unconstitutional for Wong Kwok Leung and Ho Yiu Choa to record the defendant’s words secretly.  Nor did the trial judge deal with that issue.  In my judgment, the above issue is relevant to the questions of which types of privacy are protected by law which the citizens can have a reasonable expectation of, and whether the ICAC’s covert recording activities would bring the administration of justice into disrepute.

121.  If anyone makes any statements voluntarily to another person, that person can always repeat the statements in question without restrictions when he gives evidence in court.  Of course, when a criminal makes confessions or says some words which constitute offences to his accomplices or persons he considers to be trustworthy, he will certainly have a subjective expectation that the other party will keep the secrets for him, and not to divulge his confessions or words which constitute offences to other people.  However, his subjective expectation cannot be equated with reasonable expectation.  The confessions he makes also may not fall within the privacy protected by law.

122.  When the court considers whether certain conversations fall within the privacy protected by law, it should also consider the contents of the conversations and the places where they took place, to decide whether the speaker has a reasonable expectation that the other party will keep the information confidential.  Furthermore, the court should consider the different interests in society and strike a balance between the interest of the society at large and the interest of individuals.

123.  The contents of the taped conversations that Wong Kwok Leung and Ho Yiu Choa had with the applicants have nothing to do with personal privacy.  The applicants disclosed their criminal activities and said some words which constituted offences to Wong Kwok Leung and Ho Yiu Choa under the belief that they were accomplices.  They mistakenly believed that Wong Kwok Leung and Ho Yiu Choa were like-minded persons, so there was no need to hide anything from them.  The applicants disclosed voluntarily to Ho Yiu Choa and Wong Kwok Leung something that they probably would not disclose to others.  I share Mr. Tam’s view.  I am of the view that the conversations the applicants had with Wong Kwok Leung and Ho Yiu Choa do not fall within the personal privacy that the law intends to protect.  The covert recording of the conversations by Wong Kwok Leung and Ho Yiu Choa under the arrangements of the ICAC does not constitute an unconstitutional act that infringes on the freedom and privacy of communications of the applicants.  Otherwise, when the victim of a blackmail case secretly records the threat made to him by the blackmailer, it will also constitute an infringement of privacy.  I do not think it is what a free, democratic and open society would like to see.

124.  I also agree with the analysis made by the English Court of Appeal in Bailey.  If a defendant makes an oral confession to someone voluntarily, that person can always repeat the defendant’s words in court as evidence.  Furthermore, if he has made a written record of the words said by the defendant, he can refer to the record if necessary to refresh his memory of the relevant events.  There is nothing wrong, as a matter of logic, to allow a witness to make more accurate and reliable records of conversations by means of modern technological devices.  On the other hand, it may be regarded as improper and unfair to the accused for an “undercover agent” who has been in touch with the accused for a long time to rely solely on his memory instead of other more reliable means when repeating the confession of the accused in court.  In fact, this practice has come under criticism before.

125.  I understand and accept that the constitutional rights and protection conferred on the citizens are absolute.          I am also aware that the report issued by the Law Reform Commission of Hong Kong in March 2006 entitled “Privacy: The Reputation of Covert Surveillance” indicates that the covert recording of the words of suspected criminals by “undercover agents” may be subject to regulation.  Of course, the final version of the law remains to be seen.  The statutory provisions that will be enacted may have an impact on whether there is “a reasonable expectation of privacy of the information disclosed”.  When that happens, the court may well have to look at some of the covert surveillance activities again to decide if they breach constitutional rights.

126.  However, regarding the covert recording with devices by the ICAC of the applicants' words which constitute offences through Wong Kwok Leung and Ho Yiu Choa in 2003, I do not find that it constitutes an unconstitutional act which infringes on the freedom and privacy of communication of individuals.  In handling serious crimes, the law enforcement agencies are entitled to adopt all reasonable means, for the purpose of detection of crimes and bringing criminals to justice.

127.  The applicants’ ground of appeal that the ICAC has acted unconstitutionally fails.

128.  Even if the ICAC's extraction of the applicants’ confessions through Ho Yiu Choa and Wong Kwok Leung by covert means breaches Article 30 of the Basic Law and Article 17 of the International Covenant on Civil and Political Rights, it does not mean that the court must reject those confessions.  Under the aforesaid circumstances, the court must strike a balance between the protection of constitutional rights and the detection of crimes, to ensure that the applicants are given a fair trial.  So long as the applicants can be ensured a fair trial, even evidence obtained in breach of constitutional rights should not be excluded.

129.  In HKSAR v Chan Kau Tai [2006] 1 HKLRD 400, Hon Ma CJHC makes the following comments in page 443”:

“In our view, the questions posed in the previous paragraph fall to be answered in the following way. First, account must of course be taken by the court of any breaches of rights contained in the Basic Law or the ICCPR. Secondly, 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 a discretion to admit or exclude the evidence. Thirdly, the discretion in the court to admit or exclude evidence involves a balancing exercise in which the breach of constitutional rights is an important factor whose weight will depend on mainly two matters: the nature of the right involved and the extent of the breach.”

130.  Hon Ma CJMC set out the important factors that the court must take into account in exercising its discretion, including the importance of the protection of constitutional rights.  Whether evidence obtained unconstitutionally should be produced in court as evidence must depend on the laws of the particular states or areas.  One of the fundamental themes of all constitutional documents, including the Basic Law, is to take into account the different interests in society, and to strike a balance between the competing interests.  Derogations from constitutional rights are sometimes permitted if they can be justified as being necessary, national and proportionate.  Criminal cases involve two competing interests, which can broadly be called the public interest: on the one hand the interest in protecting and enforcing constitutionally guaranteed rights; on the other, the interest in the detection of crime and bringing criminals to justice.  The objective of the exercise of discretion to strike a balance between the aforesaid competing interests is to ensure that a fair trial of the defendant takes place.  Section 78(1) of the Police and Criminal Evidence Act 1984 of England and Article 6 of the European Convention on Human Rights reflect the common law position with regards to the right to a fair trial.  In dealing with the fairness of a trial, the court must take a broad view of the overall circumstances.  Apart from looking at the procedural fairness in the actual trial, the court is also entitled to look at the overall behaviour of the investigating authority and the treatment of the accused.  The protection of constitutional rights may be outweighed by the public interest in ensuring that crimes are detected and criminals are punished.  The reason is that some constitutional rights are more important than others, when the gravity of a breach is small but the crime involved is a serious one, the public interest will lean more favourably towards the detection of crimes and the punishment of criminals, and the evidence obtained in breach of constitutional rights should be produced as evidence.

131.  In Chan Kau Tai, Hon Ma CJHC emphasizes the importance of fair trial.  He refers to a number of local and foreign cases, including R v Sang [1980] AC 402, R v Loosely (AG's Reference No.3 of 2000) [2001] 1 WLR 2060, HKSAR v Lee Ming Tee (2003) 6 HKCFAR 336, R v Smurthwaite [1994] 1 AER 898 etc, all reflect the same position.

132.  In R v Khan [1997] AC 558, the British police secretly recorded a conversation by means of an electronic surveillance device concerning the importation of heroin, which showed that the suspect was guilty.  The English House of Lords ruled that judging from the means by which the above evidence was obtained, it appeared that there might well be breaches of Article 8 of the European Convention on Human Rights or the laws of other countries.  Therefore, in dealing with the admissibility of the aforesaid evidence, the court had to take into account the same factors that the court had to consider in exercising the discretion under section 78 of the Police and Criminal Evidence Act.  However, regarding the aforesaid means, the important thing is whether the procedures of the trial are fair.  The House of Lords agreed with the decision of the trial judge that even if the evidence was obtained by means that were in breach of the provisions of Article 8 of the European Convention on Human Rights that protected privacy, the court was not obliged to exclude the evidence.  An appeal was lodged with the European Court of Human Rights, which held that although the covert recording breached Article 8, the adoption of the evidence of the secretly recorded conversation during the trial did not violate the right to a fair trial protected by Article 6.  The European Court of Human Rights reiterated that the crux of the matter was whether the overall procedures of the trial were fair. [See Khan v United Kingdom (2001) 31 EHRR 1016].

133.  Counsel Mr. Pun stressed that before deciding whether the tape recordings should be produced, the trial judge failed to consider whether the evidence was obtained in breach of the relevant provisions of the Basic Law and the International Covenant on Civil and Political Rights.  Thus the decision of the trial judge to admit the evidence was improper and should be overturned.  Mr Pun asserted that this court should not take over the function of the trial judge by exercising the discretion to decide whether to admit the evidence, because this court might not have sufficient evidence to exercise the discretion properly.  He also pointed out that there was no evidence to show that the covert recording was done with proper authorisation.  He emphasized that the ICAC might have deliberately done something which would be such an affront to the public conscience or the integrity of the criminal justice system is so compromised that the court must step in to put a stop to it.

134.  I am mindful of the fact that during the trial, the defence did not ask the court to exclude the evidence on the basis that the evidence was obtained by the ICAC through covert recording and therefore breached the relevant provisions of the Basic Law and the International Covenant on Civil and Political Rights.  They only objected to the production of the evidence on the ground that the evidence was obtained in a way that infringed the applicants’ right of silence.

135.  Even if what Mr Pun said is true, that this court did not have sufficient information to exercise its discretion, it is not the respondent's fault. This situation arose because the defence had failed to set out all their reasons of objection.  In the circumstances of this case, I am of the view that whether the covert recording of the ICAC was done with proper authorisation is not conclusive.

136.  Among the three counsel appearing for the applicants in this court, only Mr Thomas Iu was present in the trial.  Mr Iu stated that during the trial, the ICAC maintained that the covert recording was an “operational decision”, and there were no documents which could disclose the arrangements for the recording.  Mr Iu’s stance was that all the relevant information had been shown to the court, and the court had sufficient information to decide whether admitting the tape recordings as evidence would prejudice the right to a fair trial which the applicants were entitled to.  Mr Iu invited this court to decide whether the tape recordings should be admitted as evidence on the basis of the information already produced by both sides.  We think Mr Iu’s suggestion is reasonable and fair, and should be adopted.

137.  Mr Iu emphasized that before the ICAC made arrangements for the secret recording of the conversation between Wong Kwok Leung and D4, D4 had already been arrested.  D1 also made it clear that he would exercise his right of silence.  So his situation was different from the defendant in Lam Tat Ming.  In Lam Tat Ming, the covert recording operation of the ICAC took place before the defendant was arrested.

138.  On the issue of the right of silence, I cannot see any difference in logic whether the evidence was obtained before or after the defendant was arrested.  In both cases, the evidence was obtained without the knowledge of the defendants, and the defendants were not exercising their right of silence.

139.  I also find that the case referred to by Mr Newman Wong R v Lee Yi Choi [1985] 1 HKC 578 has little relevance to this case.  The defendant in that case denied the allegations made by the prosecution.  The police officer in charge of the case sent an undercover police officer who posed as an arrested robber to the cell where the defendant was remanded, where he talked to the defendant for about an hour.  The police officer claimed that during that time the defendant made a confession that he had committed murder.  The officer stayed in the cell for one night, and thereafter made a record of his conversation with the defendant by relying on his memory.

140.  In Lee Yi Choi, the trial judge held that he had no discretion not to accept the defendant’s confession as evidence.  The Court of Appeal disagreed with the trial judge.  The Court of Appeal found that what the police did was against the principal of fair trial, and that it had tainted the execution of the judicial process.  The Court of Appeal highlighted the fact that the undercover officer had had a conversation with the defendant for about an hour, but only made a record of the confession made by the defendant just from memory the following day, which was not used as a formal witness statement in the case until later.  The accuracy of the record concerned is doubtful, and the principle of fair trial has not been observed.

141.  The facts of Lee Yi Choi are special and totally different from those of the present case.  In the present case, there was no police officer pretending to be a prisoner going into a cell to mix with the defendant in order to extract a confession from him; it involved no ‘undercover agent’ making a record of a long conversation from memory as long as one day afterwards, and furthermore, there was no unreliable or inaccurate record.

142.  The decision in Lee Yi Choi was made in the light of the special circumstances of the case, and it is irrelevant to the issue in the present case. In fact, in Lam Tat Ming, the Court of Final Appeal showed reservations towards the decision in Lee Yi Choi.  The Chief Justice emphasized that the confession evidence was unreliable because the undercover officer only made a record of the conversation the following morning.

143.  The present case involves two types of interests, both of which are public interests.  One is about enforcing and ensuring the protection that citizens are entitled to under the constitution, and the other is about facilitating the law enforcement agents to solve crimes and to bring criminals to justice.  I cannot ignore the fact that most crimes are committed secretly, and very often investigators have to use covert means to collect evidence.  These means are permitted by the law.  As the Chief Justice commented in Secretary for Justice v Lam Tat Ming (2002) 3 HKCFAR 168 at p. 180J,

“The law recognises that the use of undercover operations is an essential weapon in the armoury of the law enforcement agencies; particularly their use when the criminal activities are ongoing but also their use after crimes are completed to obtain evidence to bring the criminal to book. The use of undercover operations plays an important part in society’s struggle to combat crime especially serious crime, whether it be corruption, trafficking in dangerous drugs or terrorism. But the success and indeed viability of such undercover operations depend upon the concealment of the true identity of the law enforcement officer in order to establish the appropriate relationship with the alleged wrongdoers. They therefore unavoidably involve elements of subterfuge, deceit and trickery. The law accepts that law enforcement agencies may find it necessary to resort to tactics of that kind.”

144.  It is very important and beyond doubt that law enforcement agents should be able to combat crime effectively.  Article 30 of the Basic Law provides that the freedom and privacy of communication of residents shall be protected, but this right has to give way when it is necessary to ensure public safety and investigate into criminal offences, although the law enforcement agents will have to act in accordance with legal procedures when they infringe upon the above rights.

145.  Even when the law enforcement agents’ means of obtaining evidence are unconstitutional, the court still has to strike a balance between protection of constitutional rights and investigation of crimes.  I find that this issue should be dealt with in the same way as how evidence obtained by infringing defendants’ right of silence is being dealt with.  The court has to take into account the various factors set out in Chan Kau Tai by the Court of Appeal, especially the chance of the defendants getting a fair trial.  This is similar to the main factor that the Court of Final Appeal took into account in Lam Tat Ming when deciding whether evidence obtained by infringing the right of silence should be admissible.

146.  The court needs to strike a balance between the two conflicting rights and at the same time ensure defendants’ right to fair trial.  When dealing with this question, all relevant factors have to be taken into account, and the court cannot exclude the evidence concerned simply because it is against the ICAC’s obtaining evidence by secret recording.

147.  In Lam Tat Ming, the Court of Final Appeal not only highlighted the importance of fair trial, but also talked about the gravity of offences.  However, the Court of Final Appeal also said that the court could not give too great a weight to gravity of offences such that the defendants’ right to fair trial would be diminished.

148.  But the Court of Final Appeal stressed the following:

“In answering the question of whether the right of silence has been infringed, the law has to apply practical commonsense. Where the undercover officer plays a passive role and hears or overhears the confession or records it, there can be no basis for rejecting it, because the confession has been obtained without interrogation. Once the officer actively questions the suspect, we enter into an area which may engage the exercise of the residual discretion. If all the officer does is to draw attention to the incident, in the absence of any other relevant circumstances, there is no persuasive reason for excluding a confession made. The officer is doing no more than providing an opportunity for the suspect to speak. If however what the officer does amounts to interrogation, the discretion would ordinarily be exercised so as to exclude the confession. Such an interrogation would constitute a derogation of the accused’s right of silence and thus prejudice his fair trial. Whether the conversation amounts to an interrogation would have to be determined having regard to all the circumstances.”

149.  When the court exercises its discretion, it should of course also take into account other factors, including whether the defendant’s defence was respected, especially whether the defendant had a chance to challenge the authenticity and reliability of the evidence or to object to it being admitted; whether the defendant had a chance to ask the relevant witnesses questions; whether the confession was made by the defendant voluntarily, which means the defendant was not induced or lured into confessing; and whether the quality of the evidence, which includes whether the circumstances under which the evidence was obtained would cast doubt on the accuracy and reliability of the evidence.

150.  The applicants are all serving police officers, so they must necessarily be familiar with police investigation procedures and rights of suspects.  They were arrested for suspected direct or indirect involvement in supplying prostitutes to brothels and/or taking part in prostitution business. The charges they are facing are really very serious ones.  After their arrest, they confessed when they were having normal interaction with Wong Kwok Leung and Ho Yiu Choa, and to avoid the consequences of crimes they had committed, they even behaved in such a way that amounted to committing other offences.  They also made the confessions voluntarily without being interrogated (the above ruling of the trial judge was not challenged by the applicants).

151.  In the present case, there is absolutely no functional equivalent of an interrogation as described in Allan v United Kingdom (2003) 36 EHRR 12.  Neither Wong Kwok Leung nor Ho Yiu Choa interrogated the applicants or induced them into confessing or committing crimes that they otherwise would not commit.  Wong Kwok Leung and Ho Yiu Choa also did not establish any special relationship with the applicants, which would render their confessions as being obtained with coercion.

152.  The background of the incidents clearly reveals that the applicants voluntarily confessed to Wong Kwok Leung and Ho Yiu Choa, because they were the applicants’ co-conspirators, and they knew about the applicants’ criminal acts, so there was no need for the applicants to conceal anything when they were talking with them.  The investigation conducted by the ICAC in the present case was in no way unfair to the applicants, and would definitely not make the trial unfair.

153.  At trial, the applicants all had a chance to question the two undercover conspirators and all the ICAC officers concerned to test the authenticity, accuracy and reliability of the evidence.  Their confessions are evidenced by audio recording, and they also had a chance to give an explanation about what is contained in the record.

154.  I can really find nothing that indicates that adopting the audio recording concerned would result in an unfair trial or would cause other unfairness.  Taking the incident as a whole, the applicants’ allegation that the ICAC has committed acts which tainted the execution of justice is totally unfounded.

155.  The trial judge has carefully analyzed the grounds of objections put forward by the applicants.  I agree with the trial judge's analysis on this issue.  I also find that adopting the audio recording concerned as evidence is reasonable and fair.  I do not accept the applicants’ objection to the admissibility of the audio recording concerned.  I find that none of the grounds of appeal concerning the violation of the privacy of communication or the freedom of communication or concerning the right of silence can stand.

156.  According to Mr Iu, it can be seen from the judgment that the trial judge was of the view that P.13 and P.16 can only be evidence of Count 6, but not Count 1.  Hence, supporting evidence of Count 1 came solely from Wong Kwok Leung.  Mr Iu strongly argued that Wong Kwok Leung is not an honest and reliable witness, and so D4’s conviction in Count 1 was unsafe.

157.  Mr Iu relied on the following two paragraphs in the judgment to support his position:

(1) At page 79K-M, “But the content of the audio recording I mentioned earlier on is clear, and it supports Wong  Kwok  Leung's  allegations against D1 (Lam) in Count 2, D3 (Cho) and D4 (Kan) in Count 6.”;

(2) At page 81C-F, “Under the Co-conspirators Rule, if a conspirator says or does something in the conspiracy, even if other conspirators are not present, the words and acts can still be used as evidence against the absent conspirators.  Having considered the charges and facts in the present case, I find that the conversation between D3 (Cho), D4 (Kan) and D5 (Jim) between 11 September 2003 and 30 September 2003 about Champagne cannot be regarded as being carried out for the first conspiracy, because that alleged conspiracy already ended on 8 September 2003 when the ICAC raided Champagne.  Even if the topic of bringing Champagne back to business was brought up afterwards, it could just be another conspiracy.  Hence, if D3, D4 and D5 had separate conversations with Wong Kwok Leung about Champagne, those conversations could only be used against the defendants who took part in the conversations, but not the other defendants.”

158.  The trial judge only pointed out that the audio-recorded confession of D4 could not be used against other defendants because it was not made for the conspiracy.  The trial judge did not say that D4’s confession could not be used against D4 himself.

159.  There is no reason why D4’s confession should not be used as evidence against him.  In fact, the only purpose of adopting P.13 and P.16 was to use the confessions of the individual defendants in the audio recording against the particular defendants.

160.  The trial judge never said that D4's confessions in P.13 and P.16 would not be taken into account when deciding whether Count 1 that D4 was facing could be made out.

161.  The trial judge did list out the confessions D4 made in P.13 and P.16 in detail.  In deciding whether Count 1 could be made out, the trial judge specifically mentioned that “(D4) suggested carrying on with the business at Champagne in the audio recording”.  It is impractical to argue that the trial judge did not take into account P.13 or P.16 when deciding whether Count 1 could be made out simply because the trial judge did not mention at page 79K-M that the audio recording supported Wong Kwok Leung’s allegations against D4 in Count 1.

162.  There is no doubt that Wong Kwok Leung is not a person of integrity.  He has a triad background.  His evidence is self-contradictory and some of it is also at odds with evidence given by other witnesses.  He has a motive to put the blame on others.  He is the principal operator of the establishment at Champagne, but he requested on his own initiative to become a tainted witness, to assist the ICAC with their investigation, to collect evidence and to give evidence against the defendants. The way he acted when he was giving evidence revealed that he was very good at protecting his own interests.  Despite all that is canvassed above, it does not mean that Wong Kwok Leung’s evidence against the defendants is untrue, nor does it mean that the trial judge must exclude his evidence or refrain from relying on his evidence.

163.  The trial judge clearly stated that in assessing the credibility and reliability of Wong Kwok Leung’s evidence, the factors making Wong Kwok Leung’s evidence unreliable as highlighted by the defence were being taken into account.  Despite Wong Kwok Leung's various shortcomings, it does not necessarily follow that he lied or falsely accused the applicants.  As a matter of fact, his evidence against the applicants is very strong and highly credible.

164.  I cannot ignore the fact that Wong Kwok Leung’s evidence is not only corroborated by the documentary evidence, but also supported by the audio recording.  When the applicants gave no evidence, and called no witnesses to explain about, rebut or undermine Wong Kwok Leung’s evidence, the trial judge was fully entitled to accept Wong Kwok Leung's evidence against the individual applicants.

165.  I do agree that the trial judge’s way of dealing with the credibility of D3’s evidence was wrong.  One of the reasons why the trial judge found that D3’s evidence was incredible was that during the investigation stage, D3 did not disclose the explanation that he gave when he was giving evidence in defence.  The law does not permit this. In Lee Fuk Hing v HKSAR (2004) 7 HKCFAR 600, Non-permanent Judge Mr Justice Mortimer made it clear at paragraphs 55 and 56 of the judgment,

“55. It is inappropriate in Hong Kong to use a person’s silence against him in any way.

56. A person’s right against self incrimination (his right of silence) would otherwise become a possible source of entrapment.  It is unfair for a person to have the right to remain silent, and usually to have been reminded of this right through the caution, and then for his silence to be put against him at trial.”

166.  However, the trial judge’s fault did not necessarily have any effect on his finding against D3’s evidence.

167.  D3’s defence was that he thought that Wong Kwok Leung had a guesthouse that charged on a daily and hourly basis, and he withdrew his shares 1 or 2 days after he had made the contribution.

168.  The trial judge said that D3 had been in the force for 10 years already, and he had been attached to districts abound with prostitution, such as Sham Shui Po and Mong Kok.  Although he was not specifically assigned to combat prostitution, he had been attached to the detective team and the crime squad before, so he must necessarily be familiar with the relation between the prostitution business and hourly hotels. However, D3 said that he had intended to invest in the hourly and daily hotel business, and even intended to apply to the Commissioner of Police for approval to make the investment.  This is utterly absurd.  The trial judge also said that D3 knew that Wong Kwok Leung had been arrested for operating a vice establishment, and he himself was therefore also arrested.  However, he did not blame Wong Kwok Leung for his being implicated ‘innocently’, nor did he try to stay away from Wong Kwok Leung to avoid suspicions.  On the contrary, he was concerned about him; he also helped him, gave him advice and was worried about him.  What D3 said was extremely incredible.  An innocent high-ranking police officer would definitely not act as he did.

169.  Just as what the trial judge described, D3’s concern about Chu Tsai and the prostitutes as shown in the audio recording revealed that he had a ‘personal worry’.  D3 not only asked Wong Kwok Leung to find Chu Tsai’s triad big brother in a bid to control Chu Tsai, but also claimed that he suspected that there was a betrayer.  D3 also said that he could assist if a triad big brother was to be found to control Chu Tsai.  He also told Wong Kwok Leung to contact him with street phones so as to avoid suspicions.  None of the above is consistent with his suggestion that he was being innocently implicated.

170.  I have taken into account the relevant audio recording.  I find D3’s evidence in defence very flimsy, which no reasonable tribunal would accept.

171.  In the premises, the trial judge's fault had no effect on his decision against D3’s grounds of defence, and there is no impact or influence on the decision to convict the applicants.

172.  I have considered the grounds of appeal put forward by the applicants.  I find that none of the grounds could stand.  Overall speaking, there is sufficient evidence to support the charges concerned.  I find none of the applicants’ convictions unsafe.  I dismiss the 3 applicants' application for leave to appeal.

Hon Tang JA:

173.  I have had the benefit of reading in draft the judgments of Cheung JA and Yeung JA.  I agree with their statements of the background and facts of this case.  It is unnecessary for me to state them in any detail for the purpose of my judgment.  However, since they differ in their understanding and application of important principles, I shall endeavour to express my own views.

Freedom and Privacy of Communication

174.  It is important to distinguish between the right of privacy and the admissibility of evidence obtained as a result of any breach of the right of privacy.

175.  Evidence which is obtained in breach of the right of privacy is not inadmissible per se.  What is the appropriate consequence, having regard to the breach of privacy, must depend on all the circumstances of the particular case.  The critical question is the fairness of the trial, and the relevant considerations for the exercise of the discretion to admit or exclude such evidence can be found in HKSAR v Chan Kau Tai [2006] 1 HKLRD 400.

176.  We are here concerned with the freedom and privacy of communication which are protected by the Basic Law as well as the Hong Kong Bill of Rights Ordinance (“the Bill of Rights”), Cap. 383.

177.  Under Article 30 of the Bill of Rights, the freedom and privacy of communications may be infringed:

“... in accordance with legal procedures to meet the needs of public security or of investigation into criminal offences.”

178.  Since the legitimate requirement of such needs can be satisfied by appropriate “legal procedures”, I do not believe it is necessary to further limit the freedom and privacy of communication to meet their needs.  So I must give the freedom and privacy of communication:

“... a generous interpretation so as to give individuals its full measure.” See Leung Kwok Hung and Others v HKSAR [2005] 8 HKCFAR 229 at 248C.

Participant Surveillance

179.  Here we are concerned with participant surveillance.  Both Ho and Wong must be regarded as informers and agents of the state.

180.  Mr Tam, counsel for the respondent, submitted that the right of privacy was not engaged because there was no reasonable expectation of privacy, for one or more of the following reasons:

(1) The tape recording was made with the consent of a participant;

(2) In respect of the tape recording of conversations held in a public place, because the conversations took place in a public place;

(3) The content of the conversation: they contained either evidence of criminal offences, or the conversation themselves constituted the offences.

181.  On the first submission, Mr Tam relied on R v Bailey and Others [2001] EWCA CA Crim 733, a decision of the English Court of Appeal.

182.  There, two undercover police officers moved into an upstairs flat and became acquainted with Brewin and Shona Stewart, who occupied the flat beneath them.  They made tape recordings with concealed tape recorders of conversations involving them at Brewin’s flat or during phone calls made from the flat in their presence.  One of the arguments relied on was that the tape recordings were produced in circumstances which constituted a breach of Articles 6 (right to a fair trial) and 8 (right of privacy) of the European Convention of Human Rights (“the Convention”).  The judge, Judge Bray, concluded that Article 8 had been breached because:

“... the entries by the police into Brewin’s property amounted in law to civil trespass and also constituted a breach of Article 8 of the Convention, which protects the right to ‘respect’ for private and family life.”

183.  The Court of Appeal disagreed:

“16. This was not, we repeat, not a case, where the police placed or deposited covert surveillance or recording equipment in Brewin’s home, and then left it there, while they could intercept everything said between Brewin and the members of his family, or indeed any other visitors to his home. The civil trespass relied on here stemmed from the fact that the police officers were invited to enter Brewin’s premises because they did not disclose their identity and occupation. They knew that if he knew they were police officers they would not have been invited in. So they misled him by allowing him to believe that they were not police officers doing their duty. We do not need to decide whether that converted these entries into the premises into a series of trespasses. What we do not accept is that entry in these circumstances infringed the right provided by Article 8. Brewin chose to deal with these two men on the basis that they would be willing participants in his criminal enterprises. As it happened, they were not. He chose to discuss the possibilities over with them in his home. In the very narrow sense that the discussions took place in that geographical spot, and that Brewin believed that he was dealing with like minded individuals who would treat the conversations as confidential, they were indeed ‘private’. That said, we find it impossible to envisage that the disclosure of what he said to them, or said in their presence in connection with these plans, had anything whatever to do with the rights protected by Article 8, or that respect for his family and private life, was in any way diminished.”

184.  In Bailey, the question was whether the police officers could be regarded as trespassers.  Had the conversation taken place in the officers’ flat upstairs instead of in Brewin’s flat, no question of trespass would have arisen.

185.  The precise point with which we are concerned, namely, whether a claim to privacy could avail when the tape recording was made with the consent of a participant, was not raised.

186.  Moreover, the tape recordings were authorized by the chief constable (see para. 6), without any breach “of the relevant statutory principles” (para. 34), I would not regard Bailey as supporting Mr Tam’s submission.

187.  In Canada in R v Duarte [1990] 1 SCR 30, La Forest J delivering the judgment of 6 of their lordships in the Supreme Court of Canada said at 43, of participant surveillance:

“The rationale for regulating the power of the state to record communications that their originator expects will not be intercepted by anyone other than the person intended by the originator to receive it (see definition section of Part IV.l of the Code) has nothing to do with protecting individuals from the threat that their interlocutors will divulge communications that are meant to be private. No set of laws could immunize us from that risk. Rather, the regulation of electronic surveillance protects us from a risk of a different order, i.e., not the risk that someone will repeat our words but the much more insidious danger inherent in allowing the state, in its unfettered discretion, to record and transmit our words.

            The reason for this protection is the realization that if the state were free, at its sole discretion, to make permanent electronic recordings of our private communications, there would be no meaningful residuum to our right to live our lives free from surveillance.  The very efficacy of electronic surveillance is such that it has the potential, if left unregulated, to annihilate any expectation that our communications will remain private.  A society which exposed us, at the whim of the state, to the risk of having a permanent electronic recording made of our words every time we opened our mouths might be superbly equipped to fight crime, but would be one in which privacy no longer had any meaning.  As Douglas J., dissenting in United States v. White, supra, put it, at p.756: ‘Electronic surveillance is the greatest leveler of human privacy ever known.’  If the state may arbitrarily record and transmit our private communications, it is no longer possible to strike an appropriate balance between the right of the individual to be left alone and the right of the state to intrude on privacy in the furtherance of its goals, notably the need to investigate and combat crime.”

188.  I find the reasoning compelling.  The respondent’s submission is that provided a participant to a conversation consents to the tape recording on behalf of the state, no question of privacy of communication can arise, regardless of the content of communication. In other words, the ability of the state to record one’s communication is only limited by its ability to find a willing participant.  To agree with this submission means one would sanction uncontrolled and possibly indiscriminate recording on behalf of the state.  I do not believe that to be tolerable in a civilized society.  Nor is that a necessary sacrifice for the needs of public security or of investigation into criminal offences.  As I have said, the right to infringe the freedom and privacy of communication to meet the needs of public security and of investigation into criminal offences is permitted by Article 30 of the Basic Law.  The legitimate requirement of such needs can be dealt with by appropriate “legal procedures”.  Nor should the question be confused with the admissibility of any evidence obtained as a result of the breach.  That is a separate question.  I have no doubt that there exists a right of privacy of communication in the sense of a reasonable expectation of privacy that the state would not tape or listen to the conversation even with the consent of a participant.  I agree with the majority in R v Duarte that:

“... A society which exposed us, at the whim of the state, to the risk of having a permanent electronic recording made of our words every time we opened our mouths ... would be one in which privacy no longer had any meaning.”

In this context, I see no meaningful distinction between a participant who is an undercover agent, an accomplice turned informer and a common informer.

189.  The second submission is that there can be no expectation in privacy for conversations which were held in a public place.  The Law Reform Commission of Hong Kong (“the Commission”), in its report Privacy: The Regulation of Covert Surveillance, at para. 2.41 endorsed the view expressed in the Commission’s report on Civil Liability for Invasion of Privacy, though not in the present context and said:

“... However, a person does not forfeit all legitimate expectation of privacy when he ventures to a public place or a place to which the public has access. The fact that the plaintiff is in a private or public place is not conclusive in determining whether he has a reasonable expectation of privacy.”

190.  There, they were dealing with the question of targeted photography or filming of a person in a public place.  In the case of conversation, it is difficult to see why there could be no expectation of privacy, for example, for a whispered conversation held in a country park chosen for its seclusion.  If the respondent's submission is correct, it means that whether or not the state has the permission of a participant, it would be free from the constraints of the protection of privacy of communication to tape record or to listen in to any conversation which takes place in a public place.  I do not believe that to be the law.  The authorities are against Mr Tam.

191.  Campbell v MGN Ltd [2004] 2 AC 457 is a case which shows quite clearly that there could be a reasonable expectation of privacy in relation to activities which took place in a public place.  In that case, the model Campbell was photographed in a street as she was leaving a self-help group for drug addiction.  The fact that she was photographed in a public place did not preclude her from having a reasonable expectation of privacy. The House of Lords were unanimous on this.

192.  The third submission is that, since the conversations were about criminal activities or amounted to criminal activities, there could be no expectation of privacy.  Mr Tam gave the example of A, in robbing C, told him to hand over all his money otherwise he would kill C.  Mr Tam asked rhetorically whether C would breach A’s right of privacy if C were to relate this to the police or at the trial of applicant.  The answer must be no.  But we are not concerned with such a situation here.  What we are concerned with is whether an individual has a reasonable expectation of privacy in the sense that he has a reasonable expectation that the state would not tape record or listen in to any conversation between that individual and another person or persons, even when the state has the permission of that other person or persons to do so, except:

“... in accordance with legal procedures to meet the needs of public security or of investigation into criminal offences.” Article 30, Basic Law.

193.  Also, I am not concerned with the admissibility of the evidence of that other person or persons.  On the authorities, subject to the question of the right of silence dealt with below, their evidence would be admissible.  Nor am I here addressing the admissibility of the tape recording.  Nor am I concerned with the right of that other person or persons to tape record the conversation or to allow someone (say, a spouse) to listen in to the conversation.  What I am concerned with is the right of the state to do so.  In R v Duarte the Supreme Court of Canada was of the view that the state should not be allowed to do so without “prior judicial authorisation”. In Hong Kong, Article 30 of the Basic Law requires that the state should only do so in accordance with proper “legal procedures”.  What legal procedures are required is not the concern of this judgment.

194.  As for the third submission, I do not believe it is possible to say that there is no reasonable expectation of privacy if one engages in conversation about criminal activity with a police informer.  It is not suggested that if the conversation is with an accomplice who is not an informer, there could be no reasonable expectation of privacy, because the conversation was about criminal activities.  I do not believe the added fact that a participant to the conversation is a police informer and who consented to the tape recording, is a sufficient reason to deny a reasonable expectation of privacy.  Reasonable suspicion of criminal activity might justify the tape recording, provided it is done in accordance with legal procedures.  That is permitted but not because there is no reasonable expectation of privacy.  As La Forest J said in R v Wong [1990] 60 CCC (3d) 460 at 481:

“If reliance were to be placed on such ex post facto reasoning, and the courts to conclude that persons who were the subject of an electronic search could not have had a reasonable expectation of privacy because the search revealed that they were in fact performing a criminal act, the result would inevitably be to adopt a system of subsequent validation for searches.”

195.  I do not accept that reasonable expectation of privacy should depend on the content of the conversation.  Were that so, Article 30 of the Basic Law would be rendered meaningless.

196.  Having dealt with the three submissions separately, I turn to consider whether these three elements, or a combination of some or all of them, could negate any reasonable expectation of privacy.

197.  I do not believe the mere fact that a conversation took place in a public place, whether in combination with one or more of the other two elements, is sufficient to negate a reasonable expectation of privacy.  As I have said, whether or not one has a reasonable expectation of privacy in a public place must depend on all the circumstances.  Even if all three elements were present, I believe there could still be a reasonable expectation of privacy.

198.  So here, since the tape recordings were not made in accordance with legal procedures, I would hold that the freedom and privacy of communication of the applicants have been infringed.

Admissibility of the tape recording

199.  199. As I have said, the fact that one's right of privacy has been infringed would not per se lead to the inadmissibility of the evidence obtained as a result.  Bailey is directly in point.  It is not disputed that the informers Ho and Wong would be permitted to give evidence of their recollection of the conversations.  On behalf of the applicants it was argued that because the judge had not exercised his discretion whether or not to exclude the tape recording, because no objection was taken to their admission on this ground, there should be a new trial.  I agree with my brethren that we should deal with the admissibility of the tape recording.

200.  In R v P and Others [2002] 1 AC 146, Lord Hobhouse of Woodborough said at 159 with the concurrence of the other law Lords, of the decision of the European Court of Human Rights in Schenk v Switzerland [1988] 13 EHRR 242:

“This decision of the European Court of Human Rights therefore provides a highly persuasive authority in favour of the Crown. The critical question is the fairness of the trial. Questions of the admissibility of evidence are not governed by article 8. The fair use of intercept evidence at a trial is not a breach of article 6 even if the evidence was unlawfully obtained. It is a cogent factor in favour of the admission of intercept evidence that one of the parties to the relevant conversation is going to be a witness at the trial and give evidence of what was said during it.”

201.  Bailey which followed of R v P was to the same effect.  There, Lord Justice Judge, giving the judgment of the English Court of Appeal said:

“6. In view of the submissions made on behalf of these appellants we should spell out some of the significant, if obvious, features of this evidence. An authentic recording, and an accurate transcription of it, provided the best possible evidence of exactly what was said during the conversations involving the police officers at Brewin’s house, or during phone calls made from the house in their presence. The process was authorised by the chief constable to provide independent evidence of everything and exactly what was said. We all know the fundamental reason why interviews between police officers and suspects at police stations are now tape recorded: the risks of false, inaccurate or incomplete note making by the police at the conclusion of the interviews, and similarly, unjustified attacks on them, are all avoided. It was, of course, impossible for the officers to make contemporaneous and complete written notes of what was said at Brewin’s house, and if the note taking process began after they had left the house, the note would have been subject to the usual criticism that it could not be absolutely accurate. So they used modem technology to produce the best, and in the result, entirely unchallenged evidence. There was no suggestion of tampering or interference with the recordings, whether deliberately or accidentally. The result was that the fact finding tribunal (the judge alone on a voir dire) or if the case proceeded as a trial, the jury would know, and was in a position to evaluate exactly what everyone actually said. The transcript, or if there was any doubt about the transcript itself, the recordings, would show how the police officers had behaved, and what they had said, and what the defendants had said and done, and the precise context in which they had said and done what they did. So we emphasise, the police officers were simply using modern technology to make an accurate recording of the conversations which they were having or which were taking place in their presence, in premises into which they were invited by the occupants, using recording equipment which they were carrying themselves, and which came and went in and out of the house with them. They did not record private conversations of others, nor hide recording equipment in Brewin’s flat.

……

9. Let us assume that the judge had decided to exclude the tape recordings. On the face of it, subject to the continuing general judicial discretion to exclude evidence, in law the police officers would have been entitled to give evidence of what had happened during their visits. Their recollections could not, of course, have been as complete as the tape recordings, and the risk of one side or other, whether deliberately or inadvertently, misleading the jury would have been correspondingly increased. In law the officers would also have been entitled to refresh their memories of what had been said from a note or record made contemporaneously or as soon as reasonably practicable after the relevant visits. The principle is wide enough to cover both 'present recollection revived’ as well as ‘past recollection recorded’ (see Cross & Tapper on Evidence, 9th Edition, attributing this distinction to J H Wigmore, and R v Bryant [1946] 31 CAR 146 at 150).

10. We can see no reason why the principle by which a witness is permitted to refresh his memory to the fullest permissible extent should be confined to him looking at a piece of paper with writing on it. Common sense suggests that if modern technology provides a better or different means for the same purpose, it should be available for use in court. Fortunately the principle is already well established, and was summarised, perhaps in less robust language than we should be inclined to use, in R v Ali [1966] 1 QB 688.

‘It does appear to this court wrong to deny to the law of evidence advantages to be gained by new techniques and new devices...’

11. In R v Mills [1962] 1 WLR 1152, a police officer who had heard and made a tape recording of a conversation between four suspects held in separate cells at a police station, was allowed to refresh his memory by referring to the notes he had completed with the assistance of that tape recording. Accordingly, in this case, we see no difficulty with the proposition that the police officers would have been able to refer to the tape recordings after they had left Brewin’s house for the purpose of completing their own notes, and would then have been entitled to refresh their memory from them. Indeed, on the basis of ‘past recollection revived’, we have no doubt that they could now, if we were to order a retrial, return to the tape recordings, and solemnly refresh their memories from the tape recordings, compile their notebooks, and give evidence accordingly. The absurdity of adopting such a procedure is obvious. What is more, if the evidence taken from these notes were challenged, the recording itself could be considered. Accordingly, even if the tape recordings themselves were excluded, it would be open to the prosecution to proceed to a new trial basing itself on the evidence of the police officers, refreshing their memories from them. It was suggested in argument that this analysis was incomplete. If the officers were behaving unlawfully, their evidence would not be admissible. We disagree. If their behaviour was unlawful, then the judicial discretion under s78 of the Police and Criminal Evidence Act 1984 would arise for consideration.

12. In effect therefore the judge was being asked to exclude the most reliable and undisputed evidence of what had happened when less certain evidence would have been admissible.  His ruling did not make the process unfair.  To the contrary, it contributed to the greater certainty that a true verdict would be reached if the evidence were placed before the jury.  What his ruling did not do was to deprive the appellants of their right to continue to plead not guilty.  They remained entitled to put the Crown to proof of the allegations against them, and if they wished, to give evidence to the jury to provide an innocent explanation (if there was one) for the apparently damning evidence contained in the recordings.  All the judge decided was that the Crown could produce this evidence to the jury, no more, no less ...”

202.  Earlier I have said the relevant considerations for the exercise of the discretion to admit or exclude evidence obtained in breach of the right of privacy can be found in Chan Kau Tai.  But, here, the evidence of Ho and Wong would in any event be admissible.  I am of the view that for the reasons stated in Bailey, in such circumstances, the only proper decision is to admit the tape recording.  The due administration of justice requires the production of a reliable record of the conversations.  As Judge LJ put it such evidence:

“... contributed to the greater certainty that a true verdict would be reached, …”

203.  Moreover, as Judge LJ also noted, Ho and Wong would have been entitled to refresh their memory by reference to the tape recording.

204.  I believe we are in as good a position as the judge to exercise the discretion.  I can see nothing which could persuade us to exclude the tape recording.

Right of Silence

205.  I turn to the question of the right of silence.  I believe the case of Allan v The United Kingdom [2003] 36 EHRR 12 is the most helpful authority on the subject.

206.  In that case, recordings were made of the applicant's conversations with a friend in the prison visiting area and with his co-accused in the cell they shared, and a police informant was placed in the applicant’s cell for the purpose of eliciting information from him.  On the subject of the privilege against self-incrimination or the right to silence, the European Court of Human Rights said:

“50. While the right to silence and the privilege against self-incrimination are primarily designed to protect against improper compulsion by the authorities and the obtaining of evidence through methods of coercion or oppression in defiance of the will of the accused, the scope of the right is not confined to cases where duress has been brought to bear on the accused or where the will of the accused has been directly overborne in some way. The right, which the Court has previously observed is at the heart of the notion of a fair procedure, serves in principle to protect the freedom of a suspected person to choose whether to speak or to remain silent when questioned by the police. Such freedom of choice is effectively undermined in a case in which, the suspect having elected to remain silent during questioning, the authorities use subterfuge to elicit, from the suspect, confessions or other statements of an incriminatory nature, which they were unable to obtain during such questioning and where the confessions or statements thereby obtained are adduced in evidence at trial.

51. Whether the right to silence is undermined to such an extent as to give rise to a violation of Article 6 of the Convention depends on all the circumstances of the individual case. In this regard, however, some guidance may be found in the decisions of the Supreme Court of Canada, referred to in paragraphs 30-32 above, in which the right to silence, in circumstances which bore some similarity to those in the present case, was examined in the context of section 7 of the Canadian Charter of Rights and Freedoms. There, the Canadian Supreme Court expressed the view that, where the informer who allegedly acted to subvert the right to silence of the accused was not obviously a State agent, the analysis should focus on both the relationship between the informer and the State and the relationship between the informer and the accused: the right to silence would only be infringed where the informer was acting as an agent of the State at the time the accused made the statement and where it was the informer who caused the accused to make the statement. Whether an informer was to be regarded as a State agent depended on whether the exchange between the accused and the informer would have taken place, and in the form and manner in which it did, but for the intervention of the authorities. Whether the evidence in question was to be regarded as having been elicited by the informer depended on whether the conversation between him and the accused was the functional equivalent of an interrogation, as well as on the nature of the relationship between the informer and the accused.

52. In the present case, the Court notes that in his interviews with the police following his arrest the applicant had, on the advice of his solicitor, consistently availed himself of his right to silence.  H., who was a long- standing police informer, was placed in the applicant’s cell in Stretford police station and later at the same prison for the specific purpose of eliciting from the applicant information implicating him in the offences of which he was suspected.  The evidence adduced at the applicant’s trial showed that the police had coached H. and instructed him to ‘push him for what you can’. In contrast to the position in Khan, the admissions allegedly made by the applicant to H., and which formed the main or decisive evidence against him at trial, were not spontaneous and unprompted statements volunteered by the applicant, but were induced by the persistent questioning of H., who, at the instance of the police, channelled their conversations into discussions of the murder in circumstances which can be regarded as the functional equivalent of interrogation, without any of the safeguards which would attach to a formal police interview, including the attendance of a solicitor and the issuing of the usual caution. While it is true that there was no special relationship between the applicant and H. and that no factors of direct coercion have been identified, the Court considers that the applicant would have been subjected to psychological pressures which impinged on the ‘voluntariness’ of the disclosures allegedly made by the applicant to H.: he was a suspect in a murder case, in detention and under direct pressure from the police in interrogations about the murder, and would have been susceptible to persuasion to take H., with whom he shared a cell for some weeks, into his confidence. In those circumstances, the information gained by the use of H. in this way may be regarded as having been obtained in, defiance of the will of the applicant and its use at trial impinged on the applicant’s right to silence and privilege against self-incrimination.”

207.  In Allan there was the functional equivalent of interrogation.  Here, it is quite clear from the transcript of the tape recording, there was no functional equivalent of interrogation.

208.  I agree with Cheung JA that the nature of the relationship between the informer and the accused may make the evidence inadmissible.  However, I do not believe that the fact that Wong was a good friend and an accomplice was sufficient.  Cheung JA refers to the case of R v Broyles [1991] 3 SCR 595 (which was also referred to in Allan) where Iacobucci J at page 611 identified two relevant factors on what might amount to impermissible elicitation.  The first was the functional equivalent of interrogation.  The other concerned:

“... the nature of the relationship between the state agent and the accused. Did the state agent exploit any special characteristics of the relationship to extract the statement? Was there a relationship of trust between the state agent and the accused? Was the accused obligated or vulnerable to the state agent? Did the state agent manipulate the accused to bring about a mental state in which the accused was more likely to talk?”

209.  I do not believe the fact Wong was a good friend and an accomplice fell within the type of relationship which would under the conversation inadmissible. I acknowledge that Iacobucci J made clear that the list of factors was not exhaustive.  But I believe the rationale is that some relationship, e.g. parent and child, master and pupil, doctor and patient, might render the admission made by the accused not voluntary.  In that case, the statement should not be admitted.  In other words, elicitation by the functional equivalent of interrogation or the functional equivalent of a person in authority may amount to compulsion, and might render the evidence inadmissible.

210.  This approach is consistent with the approach adopted by the Court of Final Appeal in Secretary for Justice v Lam Tat Ming and Another [2000] 3 HKCFAR 168.  There the court was concerned with a confession obtained through an undercover operation where the crimes had been committed and there was a suspect, although the suspect had not been charged.  The Chief Justice said at 181I:

“... If however what the officer does amounts to interrogation, the discretion would ordinarily be exercised so as to exclude the confession. Such an interrogation would constitute a derogation of the accused’s right of silence and thus prejudice his fair trial.”

211.  I am of the view that the same approach is appropriate in a case where the suspect has been charged and elected to remain silent.  The underlying rationale is that one should not be compelled to incriminate oneself.  This right is as important when one is a suspect as after one has been charged.

212.  I am of the view that the right of silence has not been infringed. P13 and P16 are admissible and rightly admitted by the judge.

Disposition

213.  I agree with Yeung JA that the 1^st defendant’s application should be dismissed.  Also that the 4^thdefendant’s application in relation to the 6^thcharge should also be dismissed.

The 4^th and 5^th defendants’ conviction regarding the 1^st charge

214.  In this regard I agree with Cheung JA regarding the judge’s misdirection regarding the 3^rddefendant.  I also agree with Cheung JA’s conclusion in para. 39 of his judgment.

215.  The evidence against the 1st defendant was strong.  The 3^rd defendant’s defence was highly improbable.  The judge found it to be incredible.  But unfortunately, the judge also found it necessary to make an adverse comment on the fact that the 3^rddefendant had chosen to remain silent after arrest.  Had the 3^rddefendant appealed to us, I believe I would have felt it just to allow the appeal and order a re-trial.  In such circumstances, since the 4^thand 5^thdefendants ran the same defence, I believe I would have made a similar order in relation to them.  There is no appeal from the 3^rddefendant.  He has absconded.  But that should make no difference.  This is a case where, despite the odds, the judge might have acquitted the 3^rddefendant on the basis of his evidence.  That turned on his credibility.  Since the judge in assessing the credibility of the 3^rddefendant has taken an adverse view of his having remained silent after arrest, I believe fairness requires me to give the benefit of doubt to the 3^rddefendant and by extension to the 4^thand 5^thdefendants.

216.  So I agree with Cheung JA that the 4^thand 5^thdefendants’ appeal against the conviction on the 1^st charge should be allowed.

Hon Cheung JA:

Orders

217.  This Court refuses the application for leave to appeal against conviction by the 1^st defendant against the second and fourth charges.  This Court by a majority allows the application for leave to appeal against conviction by the 4^thand 5^thdefendants against the first charge.  The application is treated as the appeal proper and the Court allows the appeal and quashes the convictions.  This Court refuses the application for leave to appeal against conviction by the 4^thdefendant against the sixth charge.

218.  In this appeal counsel for the defendants are instructed by the Director of Legal Aid.  In respect of their fees application, this Court will issue a certificate of ‘exceptional complexity’ pursuant to section 21(2) of the Legal Aid in Criminal Cases Rules, Cap. 221.