SECRETARY FOR JUSTICE v. SHUM CHIU AND ANOTHER

cacv 50 & 51/2006

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no S. 50 and 51 OF 2006

(on appeal from hcal NO. 101 of 2005)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1.  On 21 December 2006, we handed down judgment in this appeal from the decision of Hartmann J by which he remitted the case to the District Court for a fresh determination in relation to an application for a permanent stay of criminal proceedings.  We dismissed the appeal and there is now before us an application under section 32 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 to certify points of law said to be of great and general importance and said to be involved in our decision.

2.  We emphasized in our judgment what the appeal was about and what it was not about and it would appear to us, with respect, that these applications and the questions posed have missed that point.  We said that any decision deliberately to record a conversation at which would be present a defendant and his solicitors was an act liable to arouse deep instinctive concern but that:

“… it is important to appreciate at the outset what this appeal is about and what it is not about.  The prime question at this stage is whether the District Court judge’s approach to the application to call evidence was flawed.  It is not about the merits of the stay application, although we are asked to say that a hearing of the evidence would have made no difference, that a stay would have been the inevitable result.”

3.  We concluded that in the circumstances of this particular case the judge ought to have acceded to the prosecutor’s belated application to call evidence seeking to justify the recording of the conversation and we took the view that without knowing the full details of such evidence as might emerge, given the summary of what might be said, it was not possible or wise to say that a stay was inevitable.  We concluded by saying: “There may be a stay.  There might not be.  But the gun should not be jumped.”  We rather think that the applications now made would, if successful, achieve just that, namely, a jumping of the gun.

4.  The questions proposed by the first applicant’s re-amended notice of motion are these:

(a)       In the absence of a freestanding and independent criminal purpose, does Legal Professional Privilege attach to a meeting where a defendant to prospective criminal proceedings explores with his solicitor possible or even false defences to the charges brought against him and the solicitor acts and advises in the ordinary course of his business?

(b)      In such circumstances, is privilege abrogated only if the solicitor is complicit in any crime or fraud proposed, and not if he is used as the unwitting tool of a false defence?

(c)      Where a prosecuting authority (or other public authority) deliberately records a conversation between suspects and their lawyers (in which communications which are prima facie privileged are almost certain to be made), is such behaviour categorically unlawful, justifying a stay of the criminal proceedings, unless the authority can show that it knew for sure (or at least believed with a high degree of certainty) that the conversation would be an instrument of fraud or a crime and that their knowledge or belief was based on an adequate contemporaneous and objective assessment of all the facts leading to a reasoned justification of the basis for that knowledge or belief recorded in writing?

(d)      Where a prosecuting authority (or other public authority) deliberately records a conversation between suspects and their lawyers (in which communications which are prima facie privileged are almost certain to be made), is such behaviour categorically unlawful, justifying a stay of the criminal proceedings unless the authority acted under a proper authorization based on an adequate, contemporaneous investigation recorded in writing which referred expressly to the objectively justified basis upon which it was known or believed that legal professional privilege would not arise during that conversation, and to the specific evidence which justified such knowledge or belief?

5.  We fail to see the point, at this stage, of granting a certificate in relation to these questions.  We answered questions (a) and (b) in the course of our judgment and, as far as we can tell, no issue is taken about those answers, but, more importantly, in any event, the question that we addressed was whether the judge exercised her discretion correctly in refusing the prosecutor leave to call such evidence as went to the issue whether the conduct of the authorities had constituted an affront to the public conscience or to the administration of justice.  One of the contentions in the evidence which is to be adduced, so we understand, is that the law enforcement authorities thought a solicitor would not be present and would advance reasons why, in their contention, they had good reason to believe that the presence, instead, of a solicitor’s clerk, at the place chosen for the meeting, underpinned what, so it will be contended, was strong cause to do what they did.  That being so, there seems little point in certifying the suggested questions in advance of a determination of the full extent of that evidence and its credibility and its effect.  In so far as it is suggested that a stay of proceedings is inevitable unless the authority can show that they “knew for sure” that the conversation would in fact be an instrument of fraud or a crime, we do not think that is arguable.  As for question (d) we have no idea what evidence might be led as to the full circumstances in which the authorisation was given.  On its face, the authorisation will properly be the subject matter of attack.  What answer there will be to the attack, and what view the trial court will take of such an answer and of its effect, remains to be seen.

6.  It is said by Mr Blanchflower SC for the first applicant that if the matter were remitted, the District Court judge will need to know the law.  We think the law clear enough; but be that as it may, the effect of his argument is to ask us to grant a certificate before trial so that the Court of Final Appeal can give guidance to the trial judge.  That is not a basis upon which we would be prepared to grant a certificate.

7.  The points of law which the second applicant asks us to certify are these:

1.       When, in a multi defendant situation, the prosecution or the relevant law enforcement authority obtained and became aware of the contents of material protected by legal professional privilege of one defendant:

(i)        is a fair trial still possible for the other co-defendant(s) who cannot have access to that material?

(ii)       in considering (i) above, can the privilege of that one defendant be lifted through the use of hearsay evidence by the relevant enforcement authority of a criminal purpose being pursued by that defendant?

2.        Where a prosecuting authority (or other public authority) deliberately records a conversation between suspects and their lawyers (in which communications which are prima facie privileged are almost certain to be made), is such behaviour categorically unlawful, justifying a stay of criminal proceedings, unless the prosecuting authority can show that:

(i)        it knew for sure (or at least believed with a high degree of certainty) that the conversation would be an instrument of fraud or a crime and that their knowledge or belief was based on an adequate, contemporaneous and objective assessment of all the facts leading to a reasoned justification of the basis for that knowledge or belief recorded in writing; and

(ii)       it acted under a proper authorization based on an adequate, contemporaneous investigation recorded in writing which referred expressly to the objectively justified basis upon which it was known or believed that legal professional privilege would not arise during that conversation, and to the specific evidence which justified that knowledge or belief?

3.        Is mere suspicion or the possibility that an impending communication between a suspect/defendant and his solicitor might be in furtherance of a criminal purpose sufficiently strong evidence to justify the deliberate eavesdropping on and recording of that communication particularly where (i) there is no threat to public security; and (ii) the information sought can be obtained by less intrusive means?

4.        If there is not strong evidence to justify deliberate eavesdropping and the recording of a legally privileged communication, nonetheless, should an abuse of process hearing be remitted back to a lower court for reconsideration because of alleged procedural defects?

5.        Can the requirement that a court must consider “bad faith” when looking at whether there has been an affront to the rule of law through the violation of legal professional privilege, be reconciled with the requirement that there must be “strong evidence” before an interference with legal professional privilege can be justified?  Thus, where there is interference in good faith, but there is insufficient evidence to justify the interference, can the intrusion nonetheless constitute an affront to the rule of law?

6.        Accordingly, should the issue of “bad faith” be a determinative factor at all where a court is considering an abuse argument on the ground that there has been a violation of legal professional privilege and that this constitutes an affront to the rule of law?

7.        In the context of an application for a permanent stay of criminal proceedings where all parties had agreed to proceed on the basis of agreed statements of facts:

(i)        is there a duty on the trial judge (and if so, to what extent) to insist upon the hearing of oral evidence, or to allow a late application from the prosecution to call additional evidence (when the time for the calling of evidence has passed) despite previously electing not to do so?

(ii)       if so, how is this duty to be reconciled with the well-accepted principle that where evidence is available to the prosecution, the relevance of which does not arise ex improviso, it is inadmissible?

(iii)      if there is no such duty and the trial judge retains a discretion to allow or refuse the prosecution’s late application to call additional evidence, what are the factors relevant to the exercise of that discretion?

8.  The first question there raised was not an issue canvassed before us on appeal.  It is implicit in the question raised that the answer that the applicants seek is that regardless of the circumstances, and regardless of the nature of the privileged material, and regardless of the question whether the judge may himself see the privileged information in order to ascertain whether or not a fair trial was still possible, a fair trial will never be possible.  That cannot be so and we decline to certify the point.

9.  The second is in the same terms as a question or questions proposed by the first applicant and, for the same reasons, we decline to grant a certificate in relation to that question.

10.  We fail with respect to see the point of the third question.  No one has suggested, least of all this court, that mere suspicion or mere possibility suffices.  In so far as it is argued that in the present case the evidence disclosed nothing more than mere suspicion, with no strong grounds for it, that goes to the evidence in the case and not to the point of law.

11.  The fourth question rather betrays the problem with the present applications.  It assumes that there is no sufficient evidence and it assumes that there was in fact an abuse of process.  It begs the very question whether there is or is not evidence in this case to justify the recording of the communication, and it is because we concluded that the learned trial judge had impermissibly failed to hear the evidence that we upheld the direction of Hartmann J that the matter be remitted.

12.  The answer to the fifth and sixth questions would seem to us to be: “It depends on all the circumstances of the case.”  In any event, we did not suggest that bad faith was some invariable condition precedent to the establishment of conduct that could justify a stay: thus, to use the example we gave, ignorance of the law of privilege would not, we suggested, be an answer to an impermissible intrusion.

13.  It is difficult to see what answer is expected to the seventh question that will cover all situations.  The question is divorced from the factual circumstances of this case and would appear to have its foundation in a false premise.  It is divorced from the factual circumstances of this case because it ignores the fact that after the parties had agreed to proceed on the basis of an agreed statement of facts, there were other developments whereby the prosecutor sought to resile from that agreement.  The procedural picture which we addressed was not frozen at the time of the agreement.  That the premise would appear to be false emerges from the written submissions in which the assumption is made that by reason of our decision “a trial judge would have a duty to allow late applications from the prosecution to adduce extra evidence – no matter how late and the prosecution having previously elected not to call evidence – because of the nature of the issues at hand.”  (original emphasis).  The suggestion that this court laid down a principle that no matter how late an application of the prosecutor to call evidence and regardless of the circumstances in which it was made, the judge was duty-bound to allow the application, is to misread our judgment entirely.  With issues such as these, context is everything.  The judgment emphasised the short notice of the stay application, the fact of no prior notice of it to the judge, the fact that the parties had originally expected evidence to be called, that no prejudice was occasioned to them by the application, and the further fact (see paragraph 60 of the judgment) that in the exercise of her discretion, the trial judge did not exercise it on the basis that it was all too late but for the substantive reasons that werehearsed in the judgment.

14.  Accordingly, we refuse the application of each applicant to certify points of law under section 32 of the Ordinance.