HKSAR v. YU LIK WAI WILLIAM AND ANOTHER

CACC 237/2015

[2020] HKCA 210

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 237 OF 2015

(ON APPEAL FROM DCCC 325/2014)

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J U D G M E N T

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Hon McWalters JA (giving the Judgment of the court):

1.  The appellants apply, by way of Notices of Motion dated 17 October 2019 and 6 November 2019, for this court to certify, pursuant to section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, three points of law which they say are of great and general importance. The three points of law in the two Notices of Motion are the same. They are:

“(1)  Whether on (sic) interception carried out pursuant to an executive authorization issued under section 15 of the Interception of Communications and Surveillance Ordinance (Cap 589) (‘ICSO’) is unconstitutional as a breach of Article 30 of the Basic Law and Article 14 of the Hong Kong Bill of Rights Ordinance (Cap 383) as the application for that authorization is not supported by material supplied upon oath, and the application is granted by a person who is neither a judge nor a person capable of acting judicially.

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

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

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

3.  Whether the Applicant received a fair trial under Article 87 of the Basic Law and Articles 10 and 11(2) of the Hong Kong Bill of Rights Ordinance (Cap 383) as the information referred to in section 61(4) ICSO was disclosed to the Prosecutor but not to the 1^st Applicant?”

2.  In support of certification of the first question the appellants submit that it is “appropriate for the Court of Final Appeal to consider this issue afresh”.

3.  In support of certification of the second question the appellants repeat the arguments that they advanced before the court at the hearing on 12 June 2019 and which the court rejected in its judgment of 9 October 2019[1].

4.  In support of certification of the third question the appellants submitted that alternatives of a defendant being made aware of the gist of the section 61(4) information or of being provided with the assistance of a special advocate were better means of ensuring a defendant received a fair trial than the courts remedial reinterpretation of the section 61(4).

5.  We decline to certify the first question.  The argument that the issue is appropriate for the Court of Final Appeal to consider is an argument that must be addressed to that court.  It is not for us to pre-empt the view that the Court of Final Appeal may take to such a submission.

6.  We decline to certify the second point as we are not persuaded that it is reasonably arguable.  Furthermore, as Ms Lam for the respondent points out, not remedially interpreting section 61(4), and leaving it to be struck down, would have the undesirable effect of “curtailing the protection designed to ensure a defendant receives a fair trial.”  The tool of remedial interpretation exists precisely for the purpose of assisting courts to deal with any harmful consequences that may otherwise arise as a result of a decision finding a provision in an enactment of the legislature to be unconstitutional.

7.  The third question only arises if we agree to certify the second question which we have declined to do.  That being so we decline to certify the third question.