HKSAR v. HO SAI KEONG

HCMA 576/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 576 OF 2014

(ON APPEAL FROM TMCC NO 1285 OF 2014)

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D E C I S I O N

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Application for Disclosure

1.  This notice of motion concerns whether a Source File of the police force should be disclosed.  A Source File is a booklet to which every police officer is issued for the purpose of recording any communication between that police officer and his informers.  The Source File sought to be disclosed was that of the appellant, who was a police constable at the material time. 

2.  The appellant filed an affirmation in support of the motion.

3.  The respondent opposes the motion on the ground that the Source File sought to be disclosed is not relevant to any issue on appeal, hence it should not be disclosed as a matter of principle.

4.  As the respondent is of the view that this motion can be determined on the existing evidence, therefore it is not necessary to file any affirmation in reply.

Background

5.  The appellant was convicted of two charges after trial, namely:-

(1)  Possession of Dangerous Drugs (Charge 1); and

(2)  Possession of Apparatus Fit and Intended for the Inhalation of Dangerous Drugs (Charge2).

6.  He was sentenced to 8 months’ imprisonment for Charge 1 and 8 months’ imprisonment for Charge 2. Both terms were ordered to run concurrently with each other.

7.  The appellant appeals against his conviction.

8.  Charge 1 concerned 1.14 grammes of a crystalline solid containing 1.08 grammes of methamphetamine hydrochloride, commonly known as “ICE”. At trial, it was not in dispute that the aforesaid “ICE” was found on the appellant on 26 October 2013.

9.  Charge 2 concerned one plastic bottle with a cap connected to two plastic straws (with one plastic straw connected to a tin-foil at one end) containing liquid inside, one tin-foil, and one cigarette box containing two plastic straw segments and three plastic bags, fit and intended for the inhalation of “ICE”.  At trial, it was not in dispute that the appellant was found with keys to his residence where the above items were found on 26 October 2013.

10.  The appellant was a police constable attached to Tuen Mun District Crime Squad 2 at the material time.

11.  It is common ground that the Source File concerns Charge 1 only.

Prosecution Case at Trial

12.  The following facts were admitted by Prosecution and Defence at trial pursuant to section 65C of the Criminal Procedure Ordinance (Cap 221):

(a)  At the material time, the appellant was a police officer.

(b)  On the day in question, the appellant was intercepted and arrested by an officer of the Independent Commission Against Corruption (“the ICAC Officer”) when he was on his way to his residence. Dangerous drugs, which formed the subject matter of Charge 1, were found on him, together with keys to his residence.

(c)  Later on, as witnessed by the appellant, the ICAC Officer found the inhaling apparatus, which formed the subject matters of Charge 2, in the toilet of his residence, among which, a plastic bottle with the appellant’s DNA was found.

(d)  The appellant has no previous criminal record.

(e)  During the period between 15 July 2012 and 7 May 2013, Mr A was the appellant’s registered informer under the New Territories North Police Region.  On the date of incident at 0032 hours, Mr A was arrested by ICAC officers near No 49 of Kau Yuk Road, Yuen Long.

13.  Four witnesses testified for the prosecution at trial.

14.  Inspector Hui Chung Hang (“PW1”) says:

(1)  At the material time, he was the Officer-in-Charge of Team Two of the Tuen Mun District’s Crime Squad and the appellant was his subordinate.

(2)  On 26 and 27 October 2013, the appellant was not on duty.

(3)  At around 1810 hours on 25 October 2013, before the appellant went off duty, he told PW1 that he would meet an informer the next two days, but did not mention the name of the informer or how the informer was called.  He did not know the time of the meeting or whether they would meet.  PW1 requested the appellant to call him before meeting up with the informer, and the appellant replied that he understood.

(4)  PW1 then said he could only decide whether to approve the appellant’s meeting with the informer or not after the appellant had confirmed the time, location and general purpose of meeting with the informer.

(5)  PW1 also requested the appellant to submit to him an investigation report as soon as practicable after he had meeting with the informer.

(6)  PW1 never received any notification from the appellant as to the details of his meeting with the informer and up until the time of the appellant’s arrest, the appellant had not contacted him and thus PW1 had never approved the appellant’s meeting with the alleged informer.

(7)  PW1 never approved the possession of dangerous drugs or any apparatus for the smoking of dangerous drugs.

(8)  The appellant did not tell him that he had to be in possession of dangerous drugs for the sake of his duty as a police officer.

(9)  In the month of October 2013, PW1 had not assigned the appellant to investigate any dangerous drugs case or to be an undercover agent in such a case. 

(10)  The appellant never mentioned to him that he was handling information relating to dangerous drugs.

15.  Senior Superintendent Fok Lok Sang (“PW2”), the commander of Tuen Mun District, says that he had checked the “Confidential Administration File” which contains information of “registered informers” in the district, but did not find the name of Mr A in the file.  He further adds that the appellant did not have an informer who was called Mr A.

16.  Madam Sarah S M Yeung (“PW3”) is a Government Chemist at the Forensic Science Division of the Government Laboratory.  PW3’s evidence concerned DNA examination which has nothing to do with the notice of motion before me.

17.  Mr Lee Tsz Fung (“PW4”) is the ICAC Officer who arrested the appellant.  He was tendered mainly for cross-examination by the defence at trial.

Defence Case at Trial

18.  I shall adopt the summary of the defence case as set out in paras 11 to 14 of the Appellant’s Skeleton Argument.

19.  The appellant elected to give evidence at trial.  He joined the police force in 1993 and was at the time of trial a Senior Police Constable.  He has a clear record and has not been subject to any disciplinary action.

20.  The appellant’s police duties included meeting with informers. 

21.  The appellant was fond of diving and fishing.  He rented the residence, where the inhaling apparatuses were found, for the purpose of keeping his diving and fishing equipment.

22.  Mr A was a registered informer of the appellant.  Mr A had previously provided the appellant with dangerous drugs information, as recorded on pages 17 to 21 of his police notebook (D1) which contained information relating to dangerous drugs and electric guns.  Based on the above information, the appellant had arrested people involved and testified in court and had those people convicted.

23.  On 23 October 2013, two days before his arrest, the appellant had inquired of Police Constable Leung Ka Ho of the Commercial Crime Bureau about counterfeit money and informer’s fees.

24.  On 25 October 2013, the day of his arrest, the appellant did not know that Mr A was no longer a registered informer of the New Territories North Police Region.  He only came to know it for the first time when he came to court.  On 25 October, he still believed that Mr A was a registered informer.

25.  At around 1810 hours on 25 October 2013, he told PW1 briefly that he was going to meet an informer in the next two days, but at the time, PW1 did not require him to notify him moments before he met the informer.

26.  Previously, the appellant had notified PW1 on two to three occasions that he would meet an informer, similarly, on each of these occasions, PW1 did not require him to phone PW1 shortly before the meeting.

27.  As to what happened on 25 October 2013, the appellant testifies that at around 2345 hours, Mr A called him and asked him to wait for him in Lam Hau Tsuen Road, Yuen Long.  Mr A said he would come with another person to provide the appellant with information in relation to dangerous drugs and counterfeit banknotes.

28.  Later, Mr A drove a 7-seater car and arrived.  The appellant got onto the car where he saw a man whom he had never met before (that other man was referred to as B at trial).  Mr A then introduced B to the appellant and said that B would provide the appellant with information in relation to counterfeit notes.  B then handed a suspected counterfeit $100 banknote to the appellant and asked about the calculation of informers’ fees.  The appellant then put the suspected counterfeit banknote into his pocket and answered B according to the information he received from officer Leung of the Commercial Crime Bureau.

29.  Mr A then told the appellant something to the effect that he would understand everything when he saw the couch inside the pedestrian subway, thus the appellant alighted from the car and walked towards the couch.  He found a packet of suspected “ICE” at the armrest of the couch, and subsequently put the packet of “ICE” in his trousers pocket.

30.  The appellant’s intention at this point in time was to call PW1 to report the matter, but once he walked out of the pedestrian subway, ICAC officers rushed towards him and arrested him.

31.  The appellant believed he was in lawful possession of the dangerous drugs in the execution of his police duty.

32.  The suspected counterfeit banknote given to him by B was seized by an Investigation Officer of the ICAC.

33.  At the time of the incident, the appellant had on his person keys to the residence.

34.  The inhaling apparatus did not belong to the appellant.  Prior to the incident, the appellant did not know that it was there.

35.  The appellant came to know Mr A in 1988 when they were classmates at school.  He also knows the wife of Mr A.  In around 2010, Mr A’s wife told the appellant that he was beaten by Mr A and thus, in the beginning of 2012, the appellant made a copy of the keys to the residence and gave them to Mr A’s wife so that she could stay at the residence as a temporary shelter when she was beaten by her husband again.

36.  The appellant had not used the “ice bottle” for smoking dangerous drug and his DNA was not found on the straw of the “ice bottle”.  From his experience of investigating dangerous cases, the normal way of inhaling “ICE” using an “ice bottle” was to inhale the “ICE” burnt by fire and to smoke it through the straw of the bottle.

37.  The appellant thought that there are two possibilities as to why his DNA was found on the bottle cap:

(a)  when ICAC officers talked to him as they seized the “ice bottle” there was a chance that his saliva was “spilled onto” it during the conversation; or

(b)  the appellant could come into contact with anything inside the residence before his arrest, though he had never seen the “ice bottle” and did not know to whom it belonged.

38.  The appellant did not have the habit of inhaling dangerous drugs.  He suspected the inhaling apparatus belonged to Mr A.

39.  Inspector Yip (“DW2”), Officer-in-Charge of the Anti Triad Squad Division 1 of Tuen Mun District, gave evidence that he came to know the appellant through diving.  DW2 had lunch with the appellant on a certain day before the appellant’s arrest, but he was not sure if it was on 25 October 2013.  DW2 could remember though that they had lunch before the arrest of the appellant, but he could not tell how long it was before the appellant’s arrest that they lunched.  During the lunch they chatted casually.  As the lunch had taken place a long time ago, DW2 could no longer remember the exact content of the conversation DW2 had with the appellant.  DW2 testified that he, the appellant and some colleagues and friends had gone diving twice or thrice at night in the past.

The Magistrate’s Reasons for Verdict

40.  The Magistrate sets out her analysis of the evidence and her findings in paras 17 to 26 of the Statement of Findings.  She found that all the prosecution witnesses were honest and reliable and she accepted their evidence.

41.  For the evidence of the appellant, the Magistrate found that the appellant was not an honest and reliable witness.  She rejected his evidence for the reasons set out in para 19 of the Statement of Findings.

42.  As for DW2, the Magistrate found him to be an honest and reliable witness.  She accepted his evidence but as the conversation that DW2 and the appellant had during the lunch in question was not work‑related, the Magistrate considered that DW2’s evidence was not relevant to the issues of the case.

43.  The Magistrate drew the only irresistible inference from the evidence she accepted that the appellant possessed the dangerous drugs illegally.  The appellant’s explanation that he was meeting an informer was only an excuse put up by the appellant. He was not acting in the execution of his duty.  The Magistrate further found that the appellant knowingly possessed the ice bottle, which was an apparatus fit and intended for the inhalation of “ICE”.

Grounds of Appeal 

44.  The appellant’s grounds of appeal, in short, are that:

(i) the Magistrate erred in finding that the appellant was not acting in the course of his duty at the material time;

(ii) the Magistrate erred in failing to consider whether the appellant’s version of events might be true; and

(iii) the Magistrate erred in rejecting the possibility that the “ice bottle” might not belong to the appellant.

45.  It is immediately apparent that the third ground of appeal concerns Charge 2 only.  The issue about the Source File concerns those ground in relation to Charge 1.

Disclosure of the Source File

The Appellant’s Submissions

46.  Mr Bruce SC and Ms Chung submit that the issue whether the appellant was acting in the course of his duty or what he perceived to be his duty was at the very heart of the case at trial, and is in fact also his case on appeal.  There was no dispute at trial that Mr A did exist and steps were taken to shield from the public Mr A’s identity as an informer.  However, it is not clear the extent to which the former legal representatives of the applicant did much (or anything) about obtaining the Source File.  It is not possible for any submissions responsible to be made that the former legal representatives were wrong, wrong headed, negligent or grossly negligent to the extent that any decision was made about whether to apply or not to apply for the Source File, which may have a bearing on the important issue whether the appellant received a fair trial or receives a fair appeal by way of a re-hearing, bearing in mind the duty to discloses continues during the currency of appellate proceedings: R (Nunn) v Chief Constable of Suffolk Police [2015] AC 225, [2014] UKSC 37. It is the appellant’s submissions that the issue was not the identity or location of the informer but the dealings between the appellant and the informer.  At para 21 of the appellant’s submissions, it is submitted that:

“... There would be a multitude of cases where that would be highly protected information and where it would be necessary to demonstrate such a strong case as to say that the innocence of the accused was at stake: HKSAR v Agara [2014] 2 HKLRD 648. It is submitted that this is not a case, although, that said, the Appellant can make that case,”

47.  Mr Bruce SC submits that those representing the appellant are in a better position to judge whether the Source File would assist the appellant, without seeing the material in the file it is impossible for the appellant’s legal advisors to make unqualified assertions as to the value of that material.

The Respondent’s Position

48.  The respondent’s position is that the Source File is not relevant to any issue on appeal and therefore not disclosable, hence the notice of motion for an order for disclosure should be dismissed.

49.  The respondent submits that the appellant’s notebook was produced as an exhibit in the course of his evidence, the identity of Mr A was clear to all parties at trial and there was no dispute at trial that the informer “NTN 455” referred to in the entries in July 2012 was in fact Mr A.  The last recorded rendezvous between the appellant and NTN 455 in the Source File is in July 2012, which appears to be at about the same time as the entries in the appellant’s notebook, ie almost 15 months before the incident in question.  The defence that the appellant was acting in the course of his duty when he met Mr A on 25 October 2013 was squarely placed before the trial Magistrate.  Therefore the Source File was not relevant to any issue on appeal and not disclosable.

50.  The respondent submits that the Source File was compiled by the appellant, and to that extent, similar to the appellant’s notebook.  The appellant disposes at para 15 of his affirmation that apart from the date of meeting the informer, the nature of the informer, the mode of contact and the attempts to contact the informer are also relevant to the case.  The respondent submits that it is difficult to see the Source File will add anything to the notebook produced.

51.  The respondent submits that as that the Source File was compiled by the appellant, he would also have recollection of its content, it cannot therefore be suggested, as Mr Bruce SC does at para 23 of his submissions, that the appellant cannot make unqualified assertions as to the value of that material.  Mr Li submits that the application for disclosure, is in substance, a fishing expedition.

A Consideration of the Submissions 

52.  At the trial of the appellant, there was no dispute that Mr A did exist and it was an admitted fact that Mr A was the appellant’s registered informer under the New Territories North Police Region during the period between 15 July 2012 and 7 May 2013. 

53.  It is common ground between the appellant and the respondent that the Source File sought to be disclosed does exist.  In fact, the Source File was that of the appellant, it was issued to the appellant for the purpose of recording any communication between the appellant and his informers.  At the time of his trial, given that the issue whether the appellant was acting in the course of his duty or what he perceived to be his duty was at the very heart of the case at trial, the appellant must be aware of the existence of the Source File in question.  The admitted facts made concerning Mr A and the production of the appellant’s notebook show that the legal representatives of the appellant at trial were conscious of the importance of placing the appellant’s defence before the court.  The appellant was represented by experienced junior counsel at his trial, who saw fit to deal with the issue concerning Mr A in the way he did.  I agree with Mr Li that the defence that the appellant was acting in the course of his duty when he met Mr A on 25 October 2013 was squarely placed before the trial Magistrate.

54.  The appellant disposes at para 15 of his affirmation:

“15. The Source File would also record communication between myself and my supervisors as well as detailed record of my dealing with my informer and persons relating to my informer which in turn would show that at the time I met with the informer, I believed that he was a registered informant. Moreover, it would also show that my supervisor had never previously instructed me to call before and after meeting the informer. Thus it may be literally true that the last recorded rendezvous between myself and the informer known as ‘NTN 455’ was in July 2012, almost 15 months before the present offence, but that misses the point. The nature of the informer (registered or otherwise) the mode of contact and the attempts to contact that informer are also highly relevant to my case.”

55.  The appellant suggests apart from the date of meeting the informer, the nature of the informer, the mode of contact and the attempts to contact that informer are also relevant to the case.  The appellant gave evidence at his trial, he was plainly aware of the existence of the Source File and how entries were recorded, the appellant had the opportunity to tell the court all he knew about the dates of meeting Mr A, the nature of the informer (registered or otherwise) the mode of contact and the attempt to contact Mr A.  All these matters were plainly within the knowledge of the appellant.  Even if the appellant could not remember all the details about the dates of meeting, he had access to his police notebooks, in fact, a notebook of the appellant was produced as exhibit.  According to the notebook (D1) produced, the last entries made in relation to Mr A were made in July 2012, almost 15 months before the incident on 25 October 2013, it is difficult to see how the materials in the Source File could advance the appellant’s case any further.  In a letter dated 17 February 2016 (“HSK-6” of the Appellant’s Affirmation), the respondent explains that same as the entries in the appellant’s notebook, the last recorded rendezvous between the appellant and Mr A (“NTN 455”) in the Source File was in July 2012.  Mr Bruce SC does not take issue with the integrity of the respondent in the furnishing of the above information，he submits however that he, not those representing the respondent, is the one to judge the usefulness or otherwise of the materials.

56.  I agree with Mr Li’s submissions that it cannot be right that without sight of the Source File, the appellant cannot make unqualified assertions as to the value of that material.  If the appellant’s submissions at para 23 is right, then every time an application is made in respect of a Source File of police informer, the file sought to be disclosed must be provided to the asking party for the reason that, without seeing the material the file, the asking party would not be able to make unqualified assertions as to the value of that material.  The fallacy of the appellant’s submission at para 23 is more obvious in the present case, as the Source File sought to be disclosed was compiled by the appellant and he should have recollection of its contents.

57.  As rightly pointed out by Mr Li, the Source File was compiled by the appellant, he would also have recollection of its content.  It is unreasonable to suggest that without sight of the Source File, the appellant cannot make unqualified assertions as to the value of that material.  I agree with the respondent’s submissions that this application for disclosure of the Source File is, in substance, a fishing expedition.

58.  The appellant disposes at para 16 of his affirmation:

“16.  At trial, my case was that I was meeting my informer and that at the time of arrest I was acting in the course of my duty as a police officer. I believed that the informer was in the nature of a registered informer and that my mode of contact with him was appropriate. (There was testimony from PW1 which contradicted my assertion as to the appropriate mode of contact.) The fact that the informer was registered or might have been registered was a relevant matter. The fact that I have been trying to contact him – either directly or indirectly – previously is a relevant or potentially relevant matter. The mode of contact in the mode of recording contact was in issue at the trial. It is my firm belief that had this document been disclosed at trial it had the potential to make a significant difference to my case. Given that any number of elementary steps could be taken to protect the identity of the informer, there is no good reason (or at least no good reason has been given to either myself or my lawyers) why this document could not have been disclosed earlier.”

59.  As said, it was an admitted fact that Mr A was the appellant’s registered informer under the New Territories North Police Region during the period between 15 July 2012 and 7 May 2013. Before the appellant went into the witness box, he already knew what PW2 had testified about the check he had conducted with the “Confidential Administration File” which contains information of “registered informers” in the district, and the absence of the name of Mr A in the file.  PW2 further testified that the appellant did not have an informer who was called Mr A.  The appellant knew what case he had to meet before he went into the witness box.

60.  It is true that“The fact that the informer was registered or might have been registered was a relevant matter”, at trial, the Prosecution dealt with that issue by the admitted fact and the evidence of PW2.  On the part of the Defence, the issue whether Mr A was a registered informer or he might be a registered informer was covered by the evidence of the appellant, his notebook was produced as a defence exhibit.  It cannot be said that the issue had not been fully explored at trial.

61.  The fact that the current legal representatives of the appellant, with the benefit of hindsight, knowing the reasons given by the Magistrate as to why she rejected the defence of the appellant, consider that some criticisms might possibly be made against the former legal representatives of the appellant is not a reason for ordering disclosure.  The question is one of relevance of the material sought to be disclosed.  The current legal representatives of the appellant might have a different way of handling the defence had they been conducting the trial of the appellant, but the fact remains that the appellant’s case that he was acting in the course of his duty when he met Mr A on 25 October 2013 was squarely placed before the trial Magistrate.  I do not see how it can be argued that the way the former legal representatives of the appellant handled the case deprived the appellant of a fair trial or the absence of the Source File will deprive the appellant of a fair appeal by way of re‑hearing.

62.  As to how the appellant had been trying to contact Mr A – either directly or indirectly – previously, if he considered the evidence was relevant or potentially relevant to his case, to the extent that the Defence considered the evidence was relevant or potentially relevant, the appellant had the opportunity to testify at his trial over the issue.  The entries made in the appellant’s note book D1 (pages 61 to 67 of Appeal Bundle) were made in July 2012, almost 15 months before the incident in question, which took place on 25 October 2013, I agree with Mr Li’s submissions that it is difficult to see the relevance of the Source File to any of the issue on appeal. 

63.  The appellant never suggested in his evidence that he had other notebook entries made of his meetings with Mr A after the entries in July 2012, nor did he suggested in his evidence that he had recorded any meeting with Mr A after July 2012 in his Source File.

64.  The appellant was all along aware of the existence of his Source File，he knew all along how the mode of contact and the mode of recording contact were recorded in the Source File, ifthe mode of contact in the mode of recording contact was in issue, as the appellant says in his affirmation, trial counsel who then represented the appellant could have cross-examined PW1 and/or PW2 with instructions from the appellant on the issue, and if need be, discovery of the Source File could have been sought and submissions heard.

Conclusion

65.  For the reasons given, I rule that the Source File sought by the appellant is not relevant to any issue on appeal and is therefore not disclosable.  The notice of motion for an order of disclosure is therefore dismissed.