HCCC 318/2017
[2018] HKCFI 79
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 318 OF 2017
(ARISING FROM WKCC 1169 OF 2017)
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| BETWEEN |
| | HKSAR | |
| and |
| | INDRA AGUS SETIAWATI | Accused |
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Before: Deputy High Court Judge Bruce SC in Court
Date of Hearing: 3 January 2018
Date of Ruling: 4 January 2018
Date of Reasons for Ruling: 17 January 2018
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RULING ON ADMISSIBILITY
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Ruling
1. On 3 January 2018 I heard submissions on behalf of counsel forthe accused and counsel for the prosecution in relation to the admissibilityof the examination of a mobile phone seized from the accused. On 4 January 2018 I ruled as follows:
“ Counsel for the Accused objects to the reception into evidence of the product of the examination by officers of the Customs and Excise Service of the mobile phone found in the possession of the Accused on her arrest. The Prosecution proposes to adduce evidence of what was found as a result of that examination in the mobile phone of the Accused. I order that the evidence of that examination be admitted into evidence. I do so on the basis of a discretion vested in the court to admit such evidence notwithstanding that it has or may have violated privacy rights vested in the Accused by the Basic Law and the Bill of Rights. I will give written reasons for this ruling in due course. In so doing, I express my gratitude for the assistance provided to me by Counsel for the Accused and Counsel for the Prosecution.”
Introduction
2. Indra Agus Setiawati (hereafter referred to as “the accused”) faces an indictment alleging trafficking in a dangerous drug, namely 178.4 g of solid containing 124.3 g of cocaine. To this indictment she has pleaded not guilty.
Prosecution case
3. On 3 March 2017 Mr Lai Chi Wai, an officer of the Customs & Excise Department was on duty at the Customs Examination Hall, Airmail Centre at the airport. He was responsible for handling the clearance of airmail. He selected a parcel from Brazil that was addressed to Joe Willis at2/F, 21C, Block A, Tsui Yee Garden, Tai Wo Tsuen, Yuen Long Hong Kong. The declaration on the package asserted the contents were “Beauty Creams, Tonic Lotions”. The parcel was opened and it revealed a number of plastic containers. The plastic containers showed a positive reaction to cocaine. Further examination was undertaken and, in the result, cocaine discovered and sealed in the bottom part of the plastic container.
4. The Customs and Excise Service then conducted a controlled delivery. The Prosecution case is that this was effected on 8 March 2017 by a customs officer disguising himself as a post officer taking the parcel to Yuen Long. At the Ground Floor, Block A, 21C Tai Wo Tsuen, Yuen Long, the accused opened the door of the premises. The Customs and Excise Service officer disguised as a post office employee asked the accused whether she lived there. The reply was that she lived on the top floor. The accused gave the officer a colour photocopy of the passport of “Joe Willis” and said that she wanted to collect the postal item for her friend. Joe Willis was the name of the addressee on the parcel. Further, the accused produced to the disguised Customs Officer a slip of paper bearing the handwriting RR 1148 1488 BR which was, the postal packet number on the parcel. She signed for the package.
5. These events took place about 11 am on 8 March 2017. (There had been an earlier attempt on 6 March 2017 to make a controlled delivery of the parcel but nobody was at the address. A postal officer at the Yuen Long Delivery Office received a telephone enquiry from an English-speaking male who claimed to be Joe Willis. That person called to enquire about the delivery status of the parcel and requested delivery in the morning of 8 March 2017.)
6. Upon receipt of the package, the accused was arrested and cautioned. The essence of what she said under caution was that she was receiving the package on behalf of a friend of a friend and that she did not know what was in the parcel. In the course of the proceedings which followed a mobile phone in the possession of the accused was seized. The answers made by the accused under caution were post-recorded and this process took place between 1:10 pm and 1:50 pm at the residence of the accused on the rooftop of 21C Block A, Tsui Yee Garden, Tai Wo Tsuen, Yuen Long. The process of completing the post recording was done at 6:55 pm at premises occupied by the Customs and Excise Service at the International Airport. (The reason for the delay is that this is when the Indonesian interpreter became available. Although the accused made a fairly good fist of communicating in English, the safer course was to have the whole of the post-record translated into Indonesian to ensure that what was said there was clearly and adequately understood by the accused.)
7. In the course of the proceedings at the premises in Yuen Long, the mobile phone of the accused was seized. It was in her hand when she first spoke to the Customs Officer disguised as a postal service officer. The phone was switched on later, under the control of Customs and Excise officers she received and made calls to persons who were possibly connectedwith the delivery of the parcel. This proceeded some time and it appears that there was a real degree of cooperation between the accused and the customs officers. The accused and the customs officers remained at the premises of the accused until about 4 pm. The accused was then taken back to the customs premises at the Airport.
8. The mobile phone of the accused was examined by an Inspector of the Customs & Excise Service, Mr Lam Chun Pang. He had been an officer monitoring the controlled delivery at the address in Yuen Long and is the officer in charge of this case. He made decisions about which items to seize following the search of the premises occupied by the accused. This was about 2:40 pm on 8 March 2017. At 9:10 pm on the same day the Inspector conducted what he characterised as a “manual screening” on the mobile phone. At this stage, the accused and the officers involved in the operation were already back at the Customs and Excise premises at the airport. This “manual screening” occurred shortly before the accused participated in a video recorded interview under caution. Around midnight on 9 March 2017, another officer made digital pictures of the call log, the record of WhatsApp, photos and video recording. These were shown to the accused and a duplicate was given to her. The digital images thus obtained were printed out.
9. More importantly, in the course of the video recorded interview conducted on the accused starting at 9:46 pm and concluding at 11:45 pm on 8 March 2017, the accused was questioned in detail about many of the images and phone records contained on her mobile phone. It is significant that the interview was carried out under caution. These were not the only topics the subject of the interrogation but it would be fair to say that they occupied approximately half of the number of questions. Indeed, there is at least one occasion where the accused declined to answer a question put by Customs Inspector Lam. The accused did not have a lawyer present. The examination of the accused by Customs Inspector Lam in the course of the video recorded interview covered many of the items found on the mobile phone of the accused which are presently the subject of objection on the part of the accused.
10. No objection was taken to the seizure of the mobile phone. As has already been noted, the phone was used by the accused under the controlof an officer of the customs service. No objection was taken by the accused to the questioning during the video recorded interview. She answered questions put in that regard. That interview was conducted under caution.
The contents of the mobile phone of the accused
11. The contents of the items stored on the mobile phone of the accused include pictures of scales and white powder on the scales and a video of a person dismantling thermal cups from which a white powder was recovered. There is a multitude of other items including phone numbers of persons who were the subject of examination in the video recording and the earlier exchanges between the Customs Officer who was posing as a post officer and photographs of what purports to be an American passport which varies in relation to the name of the passport holder.
Relevance of the contents of the mobile phone of the accused
12. The material on the mobile phone could be accepted by the jury a circumstantial basis for inferring that, contrary to the claim by the accused that she was ignorant of the contents of the parcel she received. It could also provide a basis for the jury inferring that sending of the parcel required an organised group and that she was part of an organised group importing dangerous drugs into Hong Kong.
The scope of the objection
13. Counsel for the accused objects to the reception into evidence of the information on the mobile phone of the accused. That includes an objection to those questions in the video recorded interview of the accused which relate to the information stored on the mobile phone of the accused. While the information retained on the mobile phone was not always directly revealed in the course of the questioning in the video recorded interview, there is certainly enough in the questions of Customs Inspector Lam to reveal a fair amount of detail as to what was there.
The basis of the objection
14. Section 17A(1) of the Customs and Excise Service Ordinance, Cap 342, so far as relevant, provides:
“ (1) A member may, without warrant, stop and search and arrest any person whom he may reasonably suspect of having committed an offence against this Ordinance or an Ordinance specified in Schedule 2. (Amended 66 of 1989 s. 6)
(2) [not relevant]
(3) Where a member has arrested any person the member may search for and take possession of any thing found on his person or in or about the place at which the person has been arrested and which the member may reasonably suspect is related to or connected with the offence for which the person has been arrested or may throw light on the character or activities of that person or any associate of his.
… ”
Section 17A(1) provides power vested in a member of the Customs and Excise service to stop and search a person in the circumstanceswhich arise in that sub-section. Trafficking in dangerous drugs is an offence within Schedule 2. This section permits arrest and search without warrant for a limited class of offences. Broadly speaking, the offences covered by Schedule 2 to the Ordinance appeared to be tailored to the kind of law enforcement activities that might fairly be expected of the Customs and Excise Service. Section 17A(3) extends the power of a member of the Customs and Excise Service where such member has made an arrest. (Although not relevant in the instant case, the reference to arrest in Section 17A(3) is probably not limited to arrests under Section 17A(1). On its face, Section 17A(3) in its reference to “take possession” must be understood to include inspection or examination of the thing that the officer has taken possession of under this sub-section. What may be taken possession of under Section 17A(3) it is limited in 2 ways. First of all, it is limited in that it only permits the search and taking into possession of a thing found on the person arrested or “in or about the place at which the person has been arrested”. What the precise ambit of “in or about the place at which the person has been arrested” is not absolutely clear but it is clear that it is meant to limit the scope of things which may be taken on the arrest of a person by the Customs and Excise service. Further, in common with Section 17A(1), there is a second limitation on the taking of a thing in the circumstances covered by Section 17A(3): the taking of the thing must be based on a reasonable suspicion held by the member of the Customs and Excise service who searches for and, where appropriate, seizes the thing in question of an offence covered by Schedule 2 having been committed.
15. On the evidence together with that which was agreed between the parties during the course of the hearing of the application for the exclusion of the information on the cell phone of the accused, it is clear that the relevant officer had a reasonable suspicion that the accused was involved in an offence under the Dangerous Drugs Ordinance, Cap 134 which is one of the offences in Schedule 2. On the evidence agreed betweenthe parties, the mobile phone was found on the person of the accused in that she had it in her hand. There is no suggestion on the part of counsel for the accused that the requirements of section 17A(3) of the Customs and Excise Service Ordinance that are explicitly set out therein have not been met.
16. The essence of the objection on behalf of the accused is that even upon the premise that the search and taking possession of and thus examination of the product of the examination of her mobile phone had the relevant reasonable suspicion and that the mobile phone in question was in or about the place at which the person has been arrested within the meaning of sections 17A(1) and (3), if the accused had a reasonable expectation of privacy in relation to the contents of her mobile phone, there is a further implied limitation on the examination of the mobile phone and the information stored in that mobile phone. The implied limitation is that in the absence of a search warrant explicitly authorising such an examination, a search of the contents of the mobile phone could only be constitutionally acceptable if the search was conducted in exigent circumstances. Such a limitation does not appear in the wording of the statute and, so it is contended by counsel for the accused, the limitation is to be implied by the adoption of the line of reasoning articulated by this Court in Sham Wing Kan v Commissioner of Police [2017] 5 HKLRD 589, 6 HKC 265, HCAL 122/2014.
17. Sham Wing Kan v Commissioner of Police is a decision concerning the scope of section 50 of the Police Force Ordinance, Cap 232. Section 50(1) of that Ordinance provides a statutory basis for the apprehension of the person reasonably suspected of, amongst other things, being guilty of an arrestable offence. The critical part of section 50 of the Police Force Ordinance is section 50(6) which provides:
“ (6) Where any person is apprehended by a police officer it shall be lawful for such officer to search for and take possession of any newspaper, book or other document or any portion or extract therefrom and any other article or chattel which may be found on his person or in or about the place at which he has been apprehended and which the said officer may reasonably suspect to be of value (whether by itself or together with anything else) to the investigation of any offence that the person has committed or is reasonably suspected of having committed:
Provided that nothing in this subsection shall be construed in diminution of the powers of search conferred by any particular warrant. (Replaced 57 of 1992 s. 2)”
Section 50(6) is in broadly the same language as Section 17A(3) of the Customs and Excise Service Ordinance. The provisions of section 50(6) operate on the premise that a person has been apprehended by police officer and provides 2 basic express limitations on the circumstances in which items may be subjected to search and seizure. On that premise, an officer may search and “take possession” of a variety of items including “any other article or chattel which may be found on [the arrestee’s] person” or “in or about the place at which he has been apprehended”. It will readily be seen that the language of section 50(6) his, in this respect, pretty much the same as that in 17A(3). The other express limitation imposed by section50(6) is that the item must be one which the officer may “reasonably suspect to be of value (whether by itself or together with anything else) to the investigation of any offence that the person has committed or is reasonably suspected of having committed”. The language is not the exactly same as appears in section 17A(3) so far as the basis for the search or seizure but the standard of belief which the customs officer or the police officer (as the case may be) is required to hold is, in substance the same. (There may be an immaterial extension of scope in section 50(6) so far as an item need not of itself be of value to the investigation but might be seized if the relevant belief is that it might be of value in conjunction with another item or other items. That issue does not arise here.)
18. The decision of this Court in Sham Wing Kan v Commissioner of Police (above) arose out of an arrest of a party to the proceedings for obstructing a police officer in the execution of his duty. Following his arrest by a police officer he was searched and 5 mobile phones were seized. The arrested person was told by the police officer that the officers suspected that the mobile phones were related to the offences for which the arrest had taken place. However, very curiously, 2 of the 5 mobile phones were returned shortly after. Even more curious was the fact that the arrested person was allowed to choose which 2 of the 5 phones was to be returned. Quite what impact this had on the veracity of the assertion by the police officer that he suspected that the mobile phones were connected to the offence was never explained. In any event, the arrested person and others sought to judicially review the decision of the Commissioner of Police to examine the information stored on the mobile phones that were retained. The basis for the judicial review was that, properly understood, section 50(6) of the Police Force Ordinance did not permit warrantless examination of the information contained on the mobile phones that were retained unless these existed at the time exigent circumstances.
19. The decision of this Court in Sham Wing Kan v Commissioner ofPolice recognised the often vast amount of information which is to be foundon the modern mobile phone. That data is, or at least may, be of a private and, in some cases, of an intensely private nature. The Court recognised that both the Bill of Rights and the Basic Law provide important constitutional privacy guarantees. The Bill of Rights provides:
“
Article 14
Protection of privacy, family, home, correspondence, honour and reputation
(1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
(2) Everyone has the right to the protection of the law against such interference or attacks.”
Article 30 of the Basic Law provides:
“ 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 to meet the needs of public security or of investigation into criminal offences.”
20. Article 14 of the Bill of Rights and Article 30 of the Basic Law have been described as overlapping but not identical protections of a person’s privacy.[1] The Court in Sham Wing Kan v Commissioner of Police held in consequence of the need to strike a balance between the legitimate needs of the community for law enforcement and respect for constitutionally protected privacy rights that:
(1) where there is a reasonable expectation of privacy on the part of the holder of a mobile phone or the like in connection with that data stored on that phone device;
(2) that mobile phone (or the like) is seized from the holder under section 50 of the Police Force Ordinance;
(3) there is an implied restriction on the power to examine the data contained on that mobile phone (or the like);
(4) the implied restriction is that in the absence of a search warrant, the examination may only occur if there are what was characterised as exigent circumstances.
21. In common with most if not all other members of the Hong Kong community, I have no doubt that, in the circumstances of this case, the accused had a reasonable expectation that the information kept on her mobile phone would be private. There may be circumstances where a person in possession of a mobile phone might have no such expectation, but this case is not one of them.
22. In common with section 50(6) of the Police Force Ordinance, section 17A(3) sets out a legal procedure for dealing with not simply the seizure of an item but the examination of it as well. The nature of that examination depends on the item the subject of the seizure. An item such as a gun or drugs might be treated in one way. An item such as a notebook might well be treated in a very different way in that it may contain highly significant information. As the court in Sham Wing Kan v Commissioner ofPolice (above) observed examination of an object seized under a provision such as section 50(6) may take many forms which is context specific. Merely examining the exterior of an item such as a mobile phone and, for example, testing it for fingerprints or DNA is only part of the examination which could be appropriate for such an item. The importance of a mobile phone is often not so much the item itself but the access to the information or data that it may contain. Moreover, a modern mobile phone may provide a meansof access to other sources of data through, amongst other means, the Internet. In short, consistent with Sham Wing Kan v Commissioner of Police (above), when considering what has been seized a functional approach needs to be taken. In simple language, a mobile phone, particularly a modern mobile phone is not simply a lump of plastic, metal and wires. It has a number of functions and that is critical to how such an item might be dealt with under legislation such as that contemplated in section 50(6) of the Police Force Ordinance or section 17A(3) of the Customs and Excise Service Ordinance.
23. The essence of Sham Wing Kan v Commissioner of Police (above) is that in the constitutional context of modern law of Hong Kong, following the advent of the Bill of Rights and the Basic Law, the search of the contents of a mobile phone in the possession of a person who would be the subject of either the relevant provisions of the Police Force Ordinance or the Customs and Excise Service Ordinance might be an unacceptable invasion of the privacy rights of the person in possession of the mobile phone the subject of the search. Nevertheless, those involved in the detection or investigation of crime, including serious crime, have a legitimate interest in finding out what is on such a mobile phone. The essence of the decision is that section, read literally, permits an intrusion into these privacy rights which is too wide in scope. The decision holds that balancing the privacy rights of an individual and the legitimate interests of the community in the investigation of crime, including serious crime, such an intrusion is justified when either there is a warrant authorising such a search or the search is carried out in exigent circumstances. The decision in Sham Wing Kan v Commissioner of Police (above) permits the search for and seizure of an item such as a mobile phone but limits the authority to examine the contents of the mobile phone to exigent circumstances.
24. In my judgement, while the language of section 17A(3) of the Customs and Excise Service Ordinance is different in some respects from the language of section 50(6) of the Police Force Ordinance, they are, in substance, indistinguishable. Therefore, the limitation implied by the court inSham Wing Kan v Commissioner of Police (above) applies with equal force to section 17A(3). It follows from that that absent exigent circumstances and absent a warrant permitting the examination of the mobile phone of the accused, the examination by Customs Inspector Lam and the subsequent photographing of the information revealed on the mobile phone was undertaken in violation of the privacy rights of the accused.
25. It is appropriate to make the point that it is not suggested in any way by the accused that the officers who examined her phone acted in deliberate violation of the prohibition against an examination of the mobile phone in the absence of a search warrant permitting such a course to be implied in relation to section 17A(3). It is accepted that the officers would not have appreciated the existence of such an implied prohibition at the time of the examination. I should add that I am in no doubt that had a judicial warrant to examine the contents of the phone been applied for, it would have been granted.
26. The next question to be considered is the issue of waiver or permission. The starting point for this analysis is that the accused gave permission to use her mobile phone to the officers at the scene. A multitude of rights guaranteed by either the Bill of Rights or the Basic Law can be waived. These include (1) the privilege against self-incrimination: RvKinglake (1870)11Cox CC499; (2) legal professional privilege: CiticPacificLtdvSecretaryforJustice[2012]2HKLRD701,4HKC1. In my judgement, the privacy rights accorded under the Bill of Rights and the Basic Law could readily be waived. There is evidence that the accused allowed the Customs officers to monitor calls to that mobile phone while they were at the rooftop premises where the accused lived. That proceeded until some time between 2 pm and 3 pm. There is no suggestion that even assuming such a waiver could be revoked that it was ever revoked. The accused when confronted with questions in the video recorded interview made no protest or even query about the right of the Customs officers to be looking at her phone. Against that, 2 factors have to be considered. The first is whether, by reference to her mobile phone the accused ever appreciated that she had a right to privacy in that regard. The second is that nowhere in either the depositions or in the facts which were agreed between the parties does the issue ever arise. Certainly, there is no suggestion that the officers ever thought that his examination of the mobile phone was on the basis of a waiver or permission on the part of the accused. In truth, no one ever thought of it. In the final analysis, there is insufficient evidence for me to form a judgement on this. Given that the examination of the mobile phone is potentially an act of violation of a right to privacy, it would be for those seeking to violate that right to justify the potential violation on the basis of permission or waiver. The issue in the present circumstances can simply be resolved upon the basis that it has not been proved that any such violation was the subject of permission on the part of the accused or there was an express or implied waiver of her privacy rights.
27. Is it relevant to consider the practicalities of obtaining a search warrant in Hong Kong? Under the present system that operates in Hong Kong almost all such warrants are obtained in the office hours of the various Magistracies located in Hong Kong. There is a duty magistrate available for urgent cases. I am not sure how practical the obtaining of a search warrant might have been in the instant case had it been appreciated (as it was not) that such a warrant was necessary in the absence of exigent circumstances. In practice, the obtaining of such a warrant within the office hours of the Magistracy almost invariably requires a written application. If, for example, the application for the warrant was made pursuant to section 52(1E) of the Dangerous Drugs Ordinance, Cap 134, the application does not, strictly speaking, have to be in writing but the warrant granted by a magistrate would have to be so.
28. This court is not bound by the decision of a court of coordinate jurisdiction. Nevertheless, I propose to follow the reasoning in Sham Wing Kan v Commissioner of Police (above) because:
(1) the reasoning is compelling;
(2) the notion of implying a limitation on a statutory power to carry out a search is well-established in Hong Kong law and may be seen in the decision of R v Yu Yem-kin (1994)4HKPLR75,99 – 104;
(3) the reasoning in Sham Wing Kan v Commissioner of Police is consistent with decisions of high authority in Canada and the United States of America.
29. The decision in RvYuYem-kin(above) is important because it held that a right vested in law enforcement officials to enter and search any place or premises without warrant if he has reason to suspect that there is therein an article liable to seizure which was to be seen in section 52 of the Dangerous Drugs Ordinance as it applied [2] at the time of the decision. In RvYuYem-kin, it was held that section 52 of the Dangerous Drugs Ordinance, being a provision for warrantless search was inconsistent with Article 14 of the Bill of Rights and would be inconsistent unless the obtaining of a search warrant was not reasonably practicable. In other words, what the late Jerome Chan J was doing was asserting that unless there was a degree of urgency and, indeed a high degree of urgency about the entry of premises that such an entry had to be authorised by judicial warrant. For all practical purposes, the real difference between RvYuYem-kin(above) and Sham Wing Kan v Commissioner of Police (above) is the manner in which the urgent search might be constitutionally permitted. Both modes of limited permitted search describe circumstances of urgency: exigent circumstances as opposed to the impracticability of obtaining a warrant. It is not plain to me that Au J in Sham Wing Kan v Commissioner of Police was intending to import the jurisprudence of the United States and Canada as to the concept underlying exigent circumstances. While examples were given in that case of exigent circumstances it seems to me that the message in both that case and R v Yu Yem-kin as to the circumstances in which such an examination could take place in the absence of a judicial warrant is urgency. Given that inboth cases the search in question would have been permitted by the existence of a relevant judicial warrant, had it fallen to me to decide the scope of the implied restriction in provisions such as either the Police Force Ordinance or the Customs and Excise Service Ordinance, I would greatly prefer the language of RvYuYem-kin. There is the additional advantage of the fact that when the provision of the Dangerous Drugs Ordinance was amended following the decision in R v Yu Yem-kin, the language used of the circumstances in which such a search might be permitted in the absence of a judicial warrant was whether or not the obtaining of a warrant was impracticable. That language is a phrase which has regulated the acceptabilityof a search under section 52 of the Dangerous Drugs Ordinance since the mid-90s. In the specific circumstances of the present case, exigent circumstances as briefly explained in Sham Wing Kan v Commissioner of Police (above) and the notion of the impracticability of obtaining the relevant search warrant produce essentially the same outcome. In other words, I do not think that the Customs officers could have by 9 pm on the date of arrest justified exigent circumstances. Further, I think that the obtaining of a relevant search warrant was, by that time, practicable. In other words, by the time Customs Inspector Lam came to examine the mobile phone at about 9 pm, the time during which an exception to the requirement for a warrant had passed. The examination of the mobile phone was, in the circumstances, a violation of the constitutionally protected privacy rights of the accused.
30. In the circumstances, is the product of the examination of the mobile phone of the accused admissible?
31. Prior to the advent of the human rights guarantees under the Bill of Rights and the Basic Law, the common law as it applied in Hong Kong provided that for evidence such as that which is sought to be excluded in this case, the critical issue was relevance as opposed to whether or not the evidence had been obtained lawfully or otherwise. InKuruma, Son of Kaniuv R, Lord Goddard held: [3]
“ … the testtobeappliedinconsideringwhetherevidenceisadmissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained.”
32. The same principle may be derived from the House of Lords decision in R v Sang.[4] Prior to the advent of the Bill of Rights and the Basic Law, such an approach was consistently applied in Hong Kong. Examples include AG v Ting Shui-ching [5] (product of an illegal search in relation to an offence under the Gambling Ordinance, Cap 148) and AGvYuWan-ying [6]. AG v Yu Wan-ying is pertinent because the officer in question was obviouslyacting under the earlier iteration of section 52(1)(e) of the Dangerous Drugs Ordinance and the search was held to be illegal because the officer did not hold the belief required under the section. Duffy J held, applying RvSang (above), that this did not affect the admissibility of the drugs seized by that officer. Those authorities would hold that if the seizure produced an unfair trial then there was a discretion to exclude the evidence.
33. The advent of constitutionally entrenched rights changed the law in relation to the admissibility of the product of a search and seizure undertaken in violation of the rights of a member of the Hong Kong community.
34. The issue of admissibility of evidence obtained in breach of guarantees under the Basic Law was considered in HKSAR v Chan Kau Tai [7]. In that case, the Court of Appeal was considering evidence obtained in breach of privacy rights under the Basic Law. The Court of Appeal (Ma CJHC (as he then was), Woo VP and Tang JA (as he then was)) held that where evidence was obtained in breach of constitutional rights, a court had a discretion as to whether or not to admit that evidence. Ma CJHC held:[8]
“ First, account must of course be taken by the court of any breaches of rights containedin theBasic Law orthe ICCPR. Secondly, any breach as aforesaid will not, however, automaticallyresult in the exclusion of the evidence obtained in consequence ofthe breach: the court still retains a discretion to admit or exclude the evidence. Thirdly, the discretion in the court to admit or exclude evidence involves a balancing exercise in which the breach of constitutional rights is an important factor whose weight will depend on mainly two matters: the nature of the right involved and the extent of the breach.”
35. The issue was also considered by the Court of Final Appeal in HKSAR v Muhammad Riaz Khan [9]. In that case, the complaint on appeal wasthat the privacy rights of the appellant had been breached and that it followed from that that the court of trial ought to have excluded the evidence. The Court of Final Appeal held, following HKSARvChanKauTai (above):[10]
“ Evidence obtained in breach of a defendant’s constitutional rights can nevertheless be received if, upon a careful examination of the circumstances, its reception (i) is conducive to a fair trial, (ii) is reconcilable with the respect due to the right or rights concerned (iii) appears unlikely to encourage any future breaches of that, those or other rights. The risk-assessment called for under the third element will always be made by the courts, vigilantly of course, in the light of their up-to-date experience. Thus is achieved, consistently with the constitution, a proper balance between the interests of individual defendants and those of society as a whole. It cannot have been the framers’ intention—and is not the constitution’s effect—to stand in the way of such of balance being struck. Just as rationality and proportionality can justify an impact on a non-absolute constitutional right, so can they justify a discretion to receive evidence obtained in breach of a constitutional right. Under the test stated above, the discretion concerned is rational and proportionate. The factors to be taken into account in applying this test and the weight to be accorded to each such factor will depend on the circumstances of each case.”
36. Applying those principles to the present case, there has been a breach of the privacy rights of the accused. That breach involves the examination of information held on the mobile phone of the accused. To the extent that the degree of privacy to be expected in circumstances is relevant I would consider that generally speaking there is an expectation of a high degree of privacy in relation to the contents of a modern mobile phone. I respectfully adopt the articulation of the issues in connection with this to beseen in Sham Wing Kan v Commissioner of Police (above). In my judgement,the reception into evidence of this material would not jeopardise a fair trial ofthe accused and is, indeed, conducive to a fair trial. I also take into account the issue of whether the examination of the mobile phone is reconcilable with the clear privacy rights of the accused. This, so it seems to me, is a difficult matter but to the extent that both Sham Wing Kan v Commissioner of Police (above) and RvYuYem-kin(above) recognise that in the absence of a judicial warrant authorising the examination of the mobile phone that circumstances of urgency might be reconcilable with the clear need to protect the privacy rights of the accused it seems to me that an examination a few hours later although not characterisable as urgent was not an egregious violation of those rights. However, what is of the greatest importance in the exercise of the discretion vested in the court is the third consideration outlined by Bokhary PJ in HKSARv MuhammadRiazKhan (above). He held that it was appropriate to consider whether it appears unlikely to encourage any future breaches of that, those or other rights. It is important to note that Bokhary PJ indicated that this consideration had to take into account up-to-date experience.
37. The decision of this Court in Sham Wing Kan v Commissioner ofPolice (above) was something of a sea change in the approach of the courts two important practical matters for law enforcement agencies. In a similar vein, the decision of the Court of Appeal in Keen Lloyd Holdings Ltd v Commissioner of Customs and Excise [2016] 2 HKLRD 1372, 5 HKC 508 in relation to circumstances in which warrants could go “stale” was also such a sea change. While it is the court was declaring the law as it existed rather than as it was to be from the time of the decision, it is fair to say that law enforcement agencies did not anticipate these declarations and, in good faith, had a different view of the law which did not take into account the implied limitations on the powers of all enforcement agencies which have arisen from those decisions. It would not have surprised me in the least to learn that both developments were not anticipated by law enforcement agencies. The conduct of the officers of the Customs and Excise Service which is impugned in the present case predated the decision in Sham Wing Kan v Commissioner of Police (above) by about 6 months. Indeed, I venture to suggest that had these events occurred the day before that decision the officers would have taken exactly the same approach. As has already been indicated, counsel for the accused has taken the entirely reasonable and realistic position that no bad faith is to be imputed to the officers. In my judgement, I do not think this conduct in ignorance of the law as it was subsequently declared to be is likely to be repeated. There is also to be considered the importance of detecting and punishing serious criminal conduct. It is no understatement to characterise the conduct in the present case alleged against the accused as serious criminal conduct. The material on the mobile phone, when taken together with other proved circumstances and conduct in the case provides a circumstantial case which is capable of proving that the accused knew that there were dangerous drugs on the parcel that she received. The evidence is of great importance in that regard and those two circumstances are highly relevant to the exercise of discretion reposed in the court in the circumstances. Fortunately, I do not have to consider a problem which may arise in cases which arise after the advent of the decision in Sham Wing Kan v Commissioner of Police (above). It was suggested in argument that in serious cases there is a substantial risk that law enforcement agencies might make the judgement that the case is sufficiently serious that they do not have to comply with the appropriate interpretations of the law ofsearch and seizure and that there might therefore arise a culture of impunity. Implicit in the argument in this case was that the court should declare the evidence to be inadmissible in the exercise of its discretion to make plain that his rights must be respected. As I say, this does not arise in the present case but it may be an issue that courts have to grapple with in the future.
38. In my judgement, I am of the view that there was a breach of the privacy rights of the accused. That was a substantial breach of those rights and was done in circumstances in which there was a clearly justified expectation of privacy. Nevertheless, the breach was not one undertaken in bad faith in the sense that there is no suggestion that the relevant officers thought that their conduct was inconsistent with the provisions of the Customs and Excise Service Ordinance as they understood it. The breach of the rights of the accused took place at a time could not be characterised as exigent circumstances in the sense that this is articulated in Sham Wing Kan v Commissioner of Police (above). Although the obtaining of a warrantmight have been something of a challenge, I do not think that it could be said that the obtaining of the relevant search warrant was impracticable. The problem in this case was that, in good faith, the officers did not think that they needed one. The conduct is serious and there is a high public interest in the detection and punishment of crimes such as that which is the subject of the present indictment. Further, I do not think that in the circumstances apply in the instant case that exercising a discretion in favour of the reception into evidence of the product of the search of the mobile phone is likely to encourage future breaches of the law of search and seizure as it is now to be. It is for those reasons that I exercise my discretion in favour of ordering that the evidence be admitted.
| | (Andrew Bruce SC) |
| | Deputy High Court Judge
|
Mr Phil CHAU, Counsel on fiat of the Department of Justice, for HKSAR
Mr Richard David Donald, instructed by Ip, Kwan & Co, for the Accused
[1]HKSAR v Chan Kau Tai [2006] 1 HKLRD 400, §102
[2] There has been an amendment to restrict the right to circumstances in which it was impracticable to obtain a warrant under the section.
[3] [1955]AC197, 203
[4] [1980]AC402. This was recognised as reflecting the law in Hong Kong prior to the advent of the Bill of Rights and the Basic Law by the Court of Appeal in HKSARvChanKauTai [2006] 1 HKLRD400, CACC 26/2004, §110.
[5] [1966]HKLR174. The application of Kuruma, Son of Kaniuv R was probably obiter in that case but it appears that Scholes J was in no doubt that it was the correct principle to apply.
[6] HCMA 1719/1988 (unreported)
[7] [2006] 1 HKLRD400, CACC 26/2004
[8] [2006] 1 HKLRD400, CACC 26/2004, §116
[9] (2012)15HKCFAR232,4HKC66. The Court of Final Appeal re-affirmed this decision in Ho ManKong v SuperintendentofLaiChiKokReceptionCentre(2014)17HKCFAR179.
[10] (2012)15HKCFAR232,4HKC66, §20