by Gloria Poon, Trainee Solicitor

There have been a number of high-profile ICAC decisions recently reconfirming a Defendant’s fundamental rights that will have significant impacts on the conduct of future ICAC investigations and corruption cases. This article seeks to review and summarize the significance of these cases.

Is a warrant required prior to the conduct of secret surveillance? Kwong Hing International case:- HKSAR v. Li Man Tak and Nicholas Tan (unreported, 22nd April 2005)

On 22nd April 2005, District Court Judge Sweeney ruled that the use of secret surveillance by the ICAC is in breach of Article 30¹ of the Basic Law, which protects individuals’ privacy of communication.

Judge Sweeney did allow the secret recordings of conversations between Kwong Hing International chairman, Li Man Tak, and former UBS financial analyst, Nicholas Tan, to be admitted as evidence despite the fact that they were gathered by the ICAC unlawfully in that particular case, on the basis that the content of these conversations were authentic, expressed voluntarily and therefore vital to the trial. He considered that the ICAC were unaware of the breach of Basic Law Article 30 at that time and had conducted the surveillance in good faith.

However, he expressly warned that any further such activity after his judgment will be seen by the courts as a wilful breach.

Judge Sweeney’s reasoning is that Article 30 clearly provides that the privacy of communication shall be protected by law and a relevant authority may only infringe upon that privacy in accordance with legal procedures to meet the needs of public security or investigation into criminal offences.

The Judge ruled that ICAC standing orders do not qualify as legal procedures as they are not subject to public scrutiny and there is no reference to an outside body to see whether the Standing Orders have been complied with. A system requiring the application of a search warrant from the Court prior to such a covert surveillance operation will be considered as a proper legal procedure.

It is interesting to see whether Judge Sweeney’s ruling will cover secret phone tapping as well. The Chief Executive, or the Chief Secretary is presently empowered under Section 33 of the Telecommunications Ordinance (Cap. 106) to order that, whenever he considers that public interest requires it, any message transmitted, received, or being transmitted by telecommunication shall be intercepted or detained or disclosed to the Government or to the public officer specified in the order.

The terms of the Chief Executive’s power under this section and its exercise by the Chief Executive or authorized public officers have been criticized as arbitrary, secretive and susceptible to abuse. The pre-condition of “public interest” is again wide and vague, which means the proper exercise of this unfettered and unsupervised power depends on the good faith of the person exercising the discretion. There is no indication as to under what circumstances and conditions can this power to interfere with privacy of communication be exercised. It is under such circumstances that the Law Reform Commission concluded that section 33 of the Telecommunication Ordinance was inconsistent with the Hong Kong Bill of Rights Ordinance² in force at that time and recommended that the exercise of this power of intercepting of communications be regulated under a warrant system by applications to the High Court. An Interception of Communications Ordinance 1997 has been enacted but regrettably has yet to come into operation.

It would seem that the reasoning of Judge Sweeney on the absence of legal procedures to review procedures and the criteria for conducting secret surveillance may arguably apply to an order for phone tapping granted by the Chief Executive under Section 33 of the Telecommunication Ordinance.

The existence of a provision in the Ordinance granting such arbitrary power to the Chief Executive is equally insufficient to protect such vulnerable basic rights.

It would be interesting to see whether there will be any such successful challenges in future phone tapping cases so that one day a warrant would be required prior to the conduct of any phone tapping.

Your right to have Legal Representation

The very first thing to do when one is either “invited” or “arrested” to the ICAC is to call a lawyer. It is one of the Defendant’s fundamental rights to have legal advice before interviews are conducted by the investigating agencies. This has been confirmed in the recent case of HKSAR v. Chan Sai Ming (unreported, 4th June 2004). Universal Music ex-president Alex Chan Siu-po was released after District Court Judge Derek Pang Wai-cheong found that Chan was wrongly denied access to his mobile phone which was said to contain his lawyer’s telephone number and held that there was no case to answer.

What the Prosecution has to disclose for the purpose of Defence case preparation

In the recent case of HKSAR v. Chan Kau-tai (unreported, 28th January 2005), the former chief government building engineer and father of famous pop singer, Eason Chan was released on bail pending appeal against a 7 year bribery sentence, on the ground of non-disclosure of a past drink-driving conviction of an ICAC officer, who was a key witness in the trial. The Appellate Counsel suggested the wilful non-disclosure might undermine his credibility.

It should be noted that generally once a person is convicted, the presumption of innocence no longer operates and therefore a bail pending appeal would only be granted either when there is (1) a likelihood that a majority of sentence would have been served by the time of the appeal is heard; or (2) an arguable case of appeal. Therefore, regardless of the actual result of the appeal, the granting of the bail in the Chan case seems to suggest that the ground of material non-disclosure was at least considered to be an arguable ground of appeal. From this one can see how important such duty of disclosure is on the part of the prosecution.

The scope of the prosecution’s duty of disclosure has been thoroughly reviewed in the recent case of HKSAR v. Wu Wing Kai and Lau Tung Chee, Alan (unreported, CACC457/2003, 21st April 2005). Some of the important principles cited in the judgment are recited as follows for readers’ reference:

HKSAR v. Lee Ming Tee and Securities and Futures Commission [2004] 1 HKLRD,
per Sir Anthony Mason NPJ (with emphasis added):-

In the appeal to the House of Lords in R. v. Brown (Winston) [1998] A.C. 367 at 377E , Lord Hope says:

“The prosecution is not obliged to lead evidence which may undermine the Crown case ......Yet fairness requires that material in its possession which may cast doubt on the credibility or reliability of those witnesses whom it chooses to lead must be disclosed.”

It should be noted that the scope of the prosecution’s duty of disclosure is broad and it is likely that materials relating to the incidences where a prosecution witness was disbelieved in either court cases, tribunals, or even SFC/Stock Exchange Regulatory Committee or Panel will be covered.

Therefore, it is always in the Defendant’s interest to request for disclosure of such materials for cross-examination purposes, especially when a case is based on the credibility of key witnesses.

1. Article 30 reads, “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.”
2. Hong Kong Law Reform Commission’s Report on Privacy: Regulating the Interception of Communication, December 1996
3. The three instances to which Steyn LJ referred as arising from the duty of the Crown to give disclosure of significant material which may affect the credibility of a Crown witness were 1) previous statements of prosecution witnesses : Archbold’s Criminal Pleading, Evidence and Practice, 1994 ed., paragraph 4-279; 2) a request for a reward by a prosecution witness : Reg. v. Taylor (unreported), 11 June 1993; Reg. v. Rasheed (unreported), 17 May 1994; and 3) previous convictions of a prosecution witness.