In re LAU Wing-wo

1992, MP No. 3051

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. The Applicant is seeking to judicially review the Decision of the 1st Respondent not to stay the proceedings before him where he was charged with having committed the offence of offering an advantage to a Public Servant.

2. He appeared before the 1st Respondent on the 8th June 1992 and leading Counsel on his behalf made the application to stay the proceedings on the grounds that there had been an abuse of the process of the Court.

3. The 3 grounds of abuse complained of were :

1. The Applicant had been entrapped by the conduct of Mr. So Kon-ming an undercover agent of I.C.A.C.

2. There had been non disclosure of unused material relevant to the entrapment, and

3. There had been delay.

4. After a hearing lasting many days the 1st Respondent delivered the Ruling which is the Decision complained of in the present proceedings.

5. According to the evidence which was before the 1st Respondent The Independent Commission Against Corruption (I.C.A.C.) conducted a lengthy investigation into the activities of various Licensing Officers in the Television and Entertainment Licensing Authority (TELA) and some members of the public coming into contact with them.

6. In the furtherance of this investigation Mr. So had acted as an undercover Agent posing as a licencing officer himself. On his evidence he had taken part in the activities of members of the syndicate. According to Mr. McMahon for the 2nd Respondent Mr. So had acted quite properly in the context that he was an Agent Provocateur and that his various acts had been necessary for the purpose of breaking the corrupt activities of the members of TELA who had engaged in corruption.

7. This was hotly contested by Mr. Keane Q.C. and Mr. McCoy for the Applicant. According to Mr. McCoy, Mr. So had on his own admission clearly been guilty of numerous serious criminal offences including forgery, burglary and falsification of documents. Indeed he went so far as to submit that the 1st Respondent's finding that Mr. So had "acted with remarkable propriety" was on the evidence Wednesbury unreasonable.

8. In the present proceedings the Relief which is sought is an Order to Certiorari to quash the 1st Respondent's Decision.

9. The Grounds upon which the Relief is sought are :

"There was an error of law on the face of the record as :

1. The learned Magistrate ruled that entrapment is not a defence in criminal law nor may be a sufficient ground to order the stay of criminal proceedings. The decision of the Supreme Court of Canada in R. v Mack (1989) 44 CCC (3d) 513 and the Bill of Rights Cap 383 both are contrary to the Ruling.

2. The learned Magistrate ruled that the Crown had not failed to provide copies of all the unused material. Further a fair trial is prevented, when a Defendant in a Summary trial has to have 136 tapes (transcript : 10,000 pages) listened to, checked, and translated in order to understand the true character of the major Crown witness. This is an unbearable burden on the resources of a Defendant. The learned Magistrate failed to take into account the oppression caused to a Defendant in these circumstances by the acts and omissions of the Crown. (This issue is substantially similar to the case of Re. Chow Po-bor MP 108/92, in which Mayo J. gave leave for Judicial Review)."

10. Events have moved on since the filing of the papers. Recently I delivered a Judgment in Re Chow Po Bor being Miscellaneous Proceedings 108/92 and unreported and held that so far as the second ground was concerned the 2nd Respondent had fully complied with all his obligations to make available unused material in similar circumstances.

11. The consequence of this was that Mr. Keane considered that no useful purpose was likely to be served by reiterating the submissions made to me in Re Chow Po Bor and that the Applicant would simply reserve his position in the present application.

12. Mr. Keane also informed me that he would not be pursuing the delay issue which was argued before the 1st Respondent.

13. Although it was the last issue ventilated before me I propose dealing first with the question of the suitability of Judicial Review in respect of this application.

14. Mr. McMahon submitted that the application was not appropriate. In support of this he referred to a passage from the Joint Judgment of the Privy Council at p.261 of Tan v. Cameron 1992 3 WLR 249.

"The Barclays (Asia) appeal

Their Lordships turn to the first of the orders under appeal, namely the order of Barnett J. refusing to overturn the decision of Judge Cameron not to grant a perpetual stay of the Barclays (Asia) prosecution.

It is important to emphasise at the outset the magnitude of the task which the applicant has set himself by this appeal. Although the jurisdiction to stay a pending prosecution is undoubted, it is equally beyond doubt that the discretion to prevent a prosecution from going to trial should be very sparingly exercised. To this must be added the further obstacle, that the application to Barnett J. was not in the nature of an appeal against the conclusion of the district judge, but was (as the judge reminded himself) a review of the decision-making process, to be performed within narrow limits. As Griffiths L.J. emphasised, in Reg. v. Chief Registrar of Friendly Societies, Ex parte New Cross Building Society [1984] Q.B. 227, 260-261, in relation to the duties of a court seized of an application for judicial review:

"The court must take a broad view of the decision and not allow itself to be bogged down in minutiae, or led into the error of taking over the role of a fact finding tribunal ... particular care must be taken before stigmatising a decision as one at which no reasonable person could have arrived, for this is coming dangerously close to the court substituting its own discretion for that of the tribunal.""

15. The difficulties considered by the Privy Council were raised before me in Tung Chi Hung v. H.H. Judge Lugar Mawson and the Attorney General Unreported being MP 662/92 at p.12.

" I would further observe that even if I had not been able to come to this conclusion I would still be of the opinion that the correct course for the applicant to follow would have been to place before the District Judge hearing the case any arguments which may have been relevant to the issues which he is now raising.

In Keung Siu Wah v. Attorney General [1990] 2 HKLR 238, the Court of Appeal considered an appeal from my judgment when I considered the whole question of the appropriateness of judicial review as a remedy when the relief was being sought during the currency of on-going criminal proceedings. Fuad, JA commented on the undesirability of a proliferation of proceedings and indicated the correct course which should be adopted at page 255 :-

" In my judgment, if the prosecution of the applicant goes ahead, any complaints he may still have can only be raised before the trial court; and thereafter, if appropriate, on appeal. In my judgment it is a constitutional imperative that the Courts do not attempt to interfere with the Attorney General's discretion to prosecute, but once the charge or indictment comes before a Court for hearing, it can consider whether the prosecution should be allowed to continue if grounds amounting to an abuse of process are raised. The Australian judges in R. v. Barton were not taking too technical or artificial a view. Their decision recognises and preserves the unique constitutional position of the Attorney General, while reserving to a Court its inherent jurisdiction to prevent an abuse of its process.

In the criminal field this is still a developing and unsettled area of the law, but one thing is clear - exceptional circumstances must exist before a Court declines to proceed with a trial upon a properly formulated charge or indictment which is within its jurisdiction to hear and determine.

It was my opinion that Mayo, J. was right when he held that the application for judicial review was misconceived and so I agreed with my Lords that the appeal should be dismissed.""

16. Mr. Keane's reply to this was that there were cases where it had been accepted that Judicial Review was an appropriate procedure to deal with a situation where there had been an abuse of process. He referred to Neill v. North Anterim Magistrates Court 1992 1 WLR 1220. I have no doubt that this is correct. However, it is only in wholly exceptional cases that Judicial Review will be appropriate.

17. Is the present case such a case? I do not think so. I can see no reason why the case should not have been pursued to its conclusion. If the Applicant had been convicted of the offence an appeal could have been lodged against the conviction which could include as one of the grounds of appeal the complaint that the Applicant had been entrapped and that this constituted an abuse of process.

18. I can see no reason why the appeal on this ground could not be framed in such a manner as to contend that there had been an abuse of process.

19. The alternative of staying the proceedings while the present application is considered and perhaps an appeal or appeals thereafter seems much less satisfactory. One of the results of proceeding in this way is to very substantially delay the criminal proceedings.

20. Another difficulty which arises is the way in which the proceedings can be conducted on a Judicial Review.

21. There is no agreement whatever on the matrix of facts upon which the allegation of entrapment is based. Mr. So gave lengthy evidence before the 1st Respondent and was subjected to a protracted cross examination. At the end of the hearing the 1st Respondent clearly came to the conclusion that Mr. So had acted with propriety and had not entrapped the Applicant.

22. When hearing the present application I was placed in a difficult situation. I was invited by Mr. McCoy to hold that the 1st Respondent's finding in this respect was Wednesbury unreasonable. I do not see how I would be able to make a determination on this issue unless I had the advantage of a full hearing on the merits before me. Obviously this would involve a most wasteful duplication of time and effort.

23. I suspect that the real issue between the parties on Mr. So's conduct was whether one considered the alleged criminal activities in a vacuum or whether due cognisance was given to the fact that he was, for the purpose of the operation he was undertaking, acting the part of being a member of the corrupt syndicate in TELA. The fact that he kept a full record and apparently reported fully to his superiors would indicate that it would probably be more realistic to consider his conduct in the manner contended for by Mr. McMahon.

24. It is also worth adding that according to the evidence Mr. So endeavoured to confine himself to "going along" with the officers in TELA with their existing corrupt activities rather than initiating situations himself. Also measures were taken with the object of not harming innocent members of the public having business with TELA.

25. All of this may or may not have been wholly successful but I am very doubtful of the relevance of this in the present criminal proceedings against the Applicant unless the material is simply used for the purpose of attacking Mr. So's credibility. Again this a matter which is much more appropriate to those proceedings rather than a Judicial Review.

26. I have no doubt that Judicial Review is not an appropriate procedure for dealing with the mischief complained of by the Applicant. I would dismiss this application for this reason.

27. However, in case I am mistaken in this view I propose dealing with the application on its merits.

28. Mr. Keane accepted that on the authority of R. v. Sang 1980 AC 407 he would have great difficulty in establishing that entrapment could be a defence to a criminal charge or that the Courts would have any discretion to exclude evidence on the ground that there had been entrapment.

29. He therefore adopted a different approach. He submitted that there was no English or Hong Kong authority for the proposition that entrapment might amount to an abuse of process. It was accordingly legitimate to consider authorities in other jurisdictions on this subject.

30. If this was done it could be seen that there were compelling authorities in Canada, New Zealand and Australia to that effect.

31. There had been developments since R. v. Sang in these jurisdictions and there was no reason why the principles could not be incorporated into Hong Kong Law.

32. Although he mainly placed reliance upon the development of the Common Law he also argued that to deny such jurisdiction "would be inconsistent with the policy and objects enshrined in Hong Kong Bill of Rights C. 383 and with the present and future maintenance of the rule of Law in Hong Kong and public confidence therein".

33. The main authority he placed reliance upon was R. v. Mack 44 CCC (3d) 513. This was the Judgement of the Supreme Court of Canada.

34. Mr. Keane argued that the Court had gone beyond the principles propounded in R. v. Sang and had laid down in some detail the considerations which should be borne in mind in determining whether the use of an Agent Provocateur was legitimate or whether such action constituted entrapment. In the later case the Courts should not lend themselves. to such conduct as it amounted to an abuse of the process of the Court.

35. The guidelines are in my view accurately encapsulated in the headnote at p.514.

" While entrapment is a "defence" it is based on the need for the court to preserve the purity of the administration of justice and to prevent an abuse of its own processes rather than in lack of culpability in the accused. Thus, entrapment does not operate either as an exculpatory defence nor as a justifying defence such as necessity or duress. Entrapment arises either when the authorities provide an opportunity to persons to commit an offence without reasonable suspicion or acting mala fides for dubious motives unrelated to the investigation and repression of crime or, having a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence. As regards the latter form of entrapment it would be useful to consider whether the conduct of the police would have induced the average person in the position of the accused into committing the crime. On the other hand, this is not the only relevant method of analysis as there may be situations where it cannot be concluded that a hypothetical person would likely have committed the offence under the same circumstances and yet the presence of other factors support the conclusion that the police involvement in the instigation of crime has exceeded the bounds of propriety. Since the doctrine of entrapment is not dependent upon the accused's culpability, the focus should not be on the effect of the police conduct on the accused's state of mind. Rather, as far as possible an objective assessment of the conduct of the police and their agents is required. The pre-disposition of the accused, therefore, is of limited relevancy, being relevant only as a part of the determination of whether the provision of an opportunity by the authorities to the accused to commit the offence was justifiable. However, there must be sufficient connection between the past conduct of the accused and the provision of an opportunity, since otherwise the police suspicion will not be reasonable and pre-disposition of the accused is never relevant as regards whether the police went beyond an offer since this is to be assessed with regard to what the average non-pre-disposed person would have done. To determine whether the police have employed means which go further than providing an opportunity, the court will consider the number of factors such as the following: the type of crime being investigated and the availability of other investigative techniques; whether an average person with both the strengths and weaknesses in the position of the accused would be induced into the commission of a crime; the persistence and number of attempts made by the police before the accused agreed to commit the offence; the type of inducement used by the police including deceit, fraud, trickery or reward; the timing of the police conduct, in particular whether the police have instigated the offence or became involved in ongoing criminal activities; whether the police conduct involved an exploitation of human characteristics such as friendship; whether the police appear to have exploited a particular vulnerability of a person such as mental handicap or substance addiction; the proportionality between the police involvement as compared to the accused, including an assessment of the degree of harm caused or risk by the police, as compared to the accused, and the commission of any illegal acts by the police themselves; the existence of any threats implied or expressed made to the accused by the police or their agents; and whether the police conduct is directed at undermining other constitutional values. This, however, was not intended as an exhaustive list of circumstances."

36. As to how the Court should proceed if it was minded to conclude that there had been entrapment the headnote went on to say :

" Since the question of unlawful involvement by the state in the instigation of criminal activity is one of law or mixed law and fact, the issue of entrapment should be resolved by the trial judge and not the jury. However, before a judge considers whether a stay of proceedings lies because of entrapment it must be absolutely clear that the Crown has discharged its burden of proving beyond a reasonable doubt that the accused has committed all the essential elements of the offence. If this is not clear and there is a jury, the guilt or innocence of the accused must be determined apart from evidence which is relevant only to the issue of entrapment. If the jury decides that the accused has committed all the elements of the offence then it is open to the judge to stay the proceedings because of entrapment by refusing to register a conviction. Since guilt or innocence of the accused is not an issue at the time an entrapment claim is to be decided, the right of an accused to the benefit of a jury trial as guaranteed by s. 11 (f) of the Canadian Charter of Rights and Freedoms is in no way infringed. The burden of proof of entrapment is on the accused on a balance of probabilities. The claim of entrapment is a very serious allegation against the state. The state must be given substantial room to develop techniques which assist in its flight against crime in society and it is only when the police and their agents engage in conduct which of offends basic values of the community that the doctrine of entrapment can apply. The best way to achieve a balance between the interests of the court as guardian of the administration of justice and the interests of society and the prevention and detection of crime is to require an accused to demonstrate by a preponderance of evidence that the prosecution is an abuse of process because of entrapment. While it is not necessary for the accused to demonstrate that the entrapment would shock the community, nevertheless a stay should be entered only in the clearest of cases."

37. Mr. Keane submitted that this was a detailed and enlightened way of dealing with the problem of entrapment and that there was no reason whatever why these principles should not be incorporated into the Law in Hong Kong. The Canadian Courts had followed R. v. Mack inR. v. Spiers 1992 6 WWR 240 (Manitoba Provincial Court). A similar approach had been adopted in the New Zealand cases of R. v. Pethig 1977 1 NZLR 448, and Police v. Lavalle 1979 1 NZLR 45 and in New South Wales in R. v. Hsing 1992 25 NZWLR 685.

38. It seems to me that the basic flaw in this argument is that it overlooks the fact that the development of the law in these other jurisdictions has clearly proceeded in a different manner to the development of the law in England.

39. One matter which is clear is that the possibility of there having been an abuse of process was not entirely overlooked in R. v. Sang.

40. When the case was considered by the Court of Appeal the question of an abuse was considered by Roskill L.J. at p.423.

" 8. If, however, there is a residual discretion of the kind contended for, it can, we think, only be where the actions of the prosecution amount to an abuse of the process of the court and are oppressive in that sense. All courts have an inherent jurisdiction to protect their process against abuse from any quarter. But in the instant case and in the cases cited, the evidence led or sought to be led fell very far short of being oppressive in that sense. Compare the views of Lord Salmon and of Lord Edmund-Davies in Reg. v. Humphrys [1977] A.C. 1 and of Lord Devlin in Connelly v. Director of Public Prosecutions [1964] A.C. 1254, 1360. It will have been observed that the word "oppressive" occurs in a number of the citations we have made.

9. If a court is satisfied that a crime has been committed with in truth would not have been committed but for the activities of the informer or of police officers concerned, it can, if it thinks it right so to do, mitigate the penalty accordingly.

We would add for the sake of completeness that we have been referred to part of Law Commission Report on Defences of General Application (Law Com. No. 83) dated July 28, 1977, paragraphs 5.7 to 5.21, which discuss the cases we have analysed in this judgment. Paragraph 5.20 reads thus:

“ It is clear from this review of the law that no defence of entrapment exists in English law. It is less clear to what extent there is a discretion in the courts, by exclusion of evidence, to bring about the same result as a general defence of entrapment would achieve. But we think that this lack of clarity is due to a failure to distinguish between causing, by incitement and encouragement, the commission of an offence which would not otherwise have been committed, and obtaining evidence unfairly of an offence which had already been committed. It is evident that the first does not provide a defence; the second, despite the attempts to use the discretion, is not, we think relevant in cases of entrapment such as we are here considering. Save as a matter to be taken into account in sentencing, it would not, therefore, seem that the improper conduct of the police or informers acting as agents properly assist a defendant. If this view of the law is correct, the courts cannot, by ruling either as to substantial merits or as to the admission of evidence, exercise that indirect control of police activity which has been thought desirable in other jurisdictions.

But they no doubt exercise a substantial influence by the strong expressions of judicial disapproval referred to in the previous paragraphs of this report, and in very flagrant cases they can, and generally do, order that the papers be passed to the Director of Public Prosecutions.""

The Court was considering a serious case of entrapment in that case and it is interesting to note that something more than entrapment seems to be envisaged if the conduct is to amount to an abuse of the Court's process.

41. However, what is even more convincing than this is the manner in which each of the law Lords dealt with the problem of entrapment in their speeches. They clearly considered fully the implications of the Court receiving evidence from Agents Provocateurs and the consequences flowing from this and perhaps more importantly the consequences of reposing in the Court a discretion to exclude evidence it disapproved of. A good example of this is an extract from the speech of Lord Diplock at p. 432.

" Before turning to that wider question however, I will deal with the narrower point of law upon which this appeal actually turns. I can do so briefly. The decisions in Reg. v. McEvilly, 60 Cr.App.R. 150 and Reg. v. Mealey, 60 CR.App.R. 59 that there is no defence of "entrapment" known to English law are clearly right. Many crimes are committed by one person at the instigation of others. From earliest times at common law those who counsel and procure the commission of the offence by the person by whom the actus reus itself is done have been guilty themselves of an offence, and since the abolition by the Criminal Law Act 1967 of the distinction between felonies and misdemeanours, can be tried, indicted and punished as principal offenders. The fact that the counsellor and procurer is a policeman or a police informer, although it may be of relevance in mitigation of penalty for the offence, cannot affect the guilt of the principal offender; both the physical element (actus reus) and the mental element (mens rea) of the offence with which he is charged are present in his case.

My Lords, this being the substantive law upon the matter, the suggestion that it can be evaded by the procedural device of preventing the prosecution from adducing evidence of the commission of the offence does not bear examination. Let me take first the summary offence prosecuted before magistrates where there is no practical distinction between a trial and a "trial within a trial." There are three examples of these in the books, Brannan v. Peek [1948] 1 K.B. 68; Browning v. J. W. H. Watson (Rochester) Ltd. [1953] 1 W.L.R. 1172; Sneddon v. Stevenson [1967] 1 W.L.R. 1051. Here the magistrates in order to decide whether the crime had in fact been instigated by an agent provocateur acting upon police instructions would first have to hear evidence which exhypothesi would involve proving that the crime had been committed by the accused. If they decided that it had been so instigated, then, despite the fact that they had already heard evidence which satisfied them that it had been committed, they would have a discretion to prevent the prosecution from relying on that evidence as proof of its commission. How does this differ from recognising entrapment as a defence - but a defence available only at the discretion of the magistrates?

Where the accused is charged upon indictment and there is a practical distinction between the trial and a "trial within a trial," the position, as it seems to me, would be even more anomalous if the judge were to have a discretion to prevent the prosecution from adducing evidence before the jury to prove the commission of the offence by the accused. If he exercised the discretion in favour of the accused he would then have to direct the jury to acquit. How does this differ from recognising entrapment as a defence - but a defence for which the necessary factual foundation is to be found not by the jury but by the judge and even where the factual foundation is so found, the defence is available only at the judge's discretion.

My Lords, this submission goes far beyond a claim to a judicial discretion to exclude evidence that has been obtained unfairly or by trickery; nor in any of the English cases on agents provocateurs that have come before appellate courts has it been suggested that it exists. What it really involves is a claim to a judicial discretion to acquit an accused of any offences in connection with which the conduct of the police incurs the disapproval of the judge. The conduct of the police where it has involved the use of an agent provocateur may well be a matter to be taken into consideration in mitigation of sentence; but under the English system of criminal justice, it does not give rise to any discretion on the part of the judge himself to acquit the accused or to direct the jury to do so, notwithstanding that he is guilty of the offence. Nevertheless the existence of such a discretion to exclude the evidence of an agent provocateur does appear to have been acknowledged by the Courts-Martial Appeal Court of Northern Ireland in Reg. v. Murphy [1965] N.I. 138. That was before the rejection of "entrapment" as a defence by the Court of Appeal in England; and Lord MacDermott C.J. in delivering the judgment of the court relied upon the dicta as to the existence of a wide discretion which appeared in cases that did not involve an agent provocateur. In the result he held that the court-martial had been right in exercising its discretion in such a way as to admit the evidence."

42. A further example can be seen from an extract from Lord Scarman's speech at p. 451.

"It would be wrong in principle to import into our law a defence of entrapment. Incitement is no defence in law for the person incited to crime, even though the inciter is himself guilty of crime and may be far the more culpable. It would confuse the law and create unjust distinctions if incitement by a policeman or an official exculpated him whom they incited a crime whereas incitement by others - perhaps exercising much greater influence - did not. There are other more direct, less anomalous, ways of controlling police and official activity that by introducing so dubious a defence into the law. The true relevance of official entrapment into the commission of crime is upon the question of sentence when its mitigating value may be high: see Reg. v. Birtles."

43. What is evident is that the Court did fully consider the problem of entrapment.

44. The solution which the House of Lords provides is a rather different one to that provided in Lamer J's Judgment in R. v. Mack.

45. What is suggested by the Law Lords is that if there has been unfair entrapment it is always open to the Court to reflect this fact in the sentence which may be imposed. In some cases this may result in considerable mitigation in the sentence which may otherwise have been imposed.

46. In my opinion it is impossible to attempt to add Lamer J's guidelines to R. v. Sang as the underlying philosophy of the House of Lords is totally inconsistent with Lamer J's approach.

47. There is the further problem that entrapment does not fit in conveniently with existing classes of cases of abuse of process.

48. I say this on account of the fact that in the normal type of case of abuse it is possible to determine whether there has been an abuse by considering matters extraneous to the facts of the case itself. In the case of entrapment it would normally only be possible to decide whether there had been an abuse after hearing a substantial part of the evidence in the case itself.

49. R. v. Mack is itself a good illustration of the procedural difficulties which will almost inevitably arise if entrapment is dealt with as an abuse of the process of the Court. It is only possible to consider the matter at the conclusion of the case as a whole after all the evidence has been considered and even then it must be questionable whether it is right that such an issue should be considered by the Judge alone or whether it should be referred to the jury.

50. It is also I think significant that the English cases following R. v. Mack in time have in no way adopted Lamer J's guidelines. I refer to R. v. Harwood 1989 Crim. CR 285 and R. v. Gill & Ranuana 1989 Crim. CR 358. These cases followed R. v. Sang and I have no doubt that the principles laid down by the House of Lords remain unaffected by any developments there may have been in other jurisdictions.

51. I have no doubt that when the 1st Respondent made his Decision he was correctly adhering to the law as it was when he made his Determination. So far as the facts are concerned he stated himself that he was aware of the R. v. Mack guidelines and even bearing these in mind he did not consider that Mr. So's conduct was such as to amount to entrapment. He had the advantage of observing Mr. So in the witness box over a lengthy period of time and it seems to me that it would be perverse for me to attempt to interfere in any way with the 1st Respondent's findings of fact on the basis of a perusal of the papers which were before me.

52. As I have already indicated there was no necessity for me to embark upon such an enterprise as I am satisfied that it is clearly the law that entrapment cannot constitute a defence and nor can a Tribunal exclude evidence simply on the basis that it may disapprove of the way in which it has been obtained.

53. There would not seem to me to be any merit in the contention that if the label of abuse of Court is adopted to argue entrapment that it is possible to arrive at a different result to the very clear formulation of the law in R. v. Sang. I would also add, as the matter was raised, that I do not think that any difficulty is encountered by virtue of the enactment of the Bill of Rights. The fact that some Commonwealth Courts have chosen to deal with the problem of entrapment in a different way to the approach adopted by the House of Lords is not a significant matter.

54. For the reasons I have given I would dismiss the application on its merits.

55. I propose making an order nisi that the Respondents are to have their costs.