RE LI MAN TAK AND OTHERS

RE LI MAN TAK AND OTHERS

Telephone intercepts obtained under section 33 and treated as non-evidential intelligence are not disclosable in the form of original recordings; the Chief Executive's warrant power under s33 does not extend to amassing evidence for prosecution, ICAC had no obligation to retain original tapes for trial, destruction under its policy does not amount to a material irregularity or abuse of process, no demonstrable prejudice to D1 was shown, and therefore the permanent stay application is refused.

Citation
RE LI MAN TAK AND OTHERS
Parties
Defendant/applicant: Li Man-tak (D1); Co Defendant: D4; Prosecution/respondent: HKSAR
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
5 May 2005
Case Number
DCCC689/2004
Procedural Posture
Criminal Conspiracy to Offer Advantages to an Agent / Trial — Voir Dire and Ruling on Permanent Stay Application
Outcome
Permanent stay application by D1 refused
Legal Topics
Telephone Interception, Disclosure of Unused Material, Abuse of Process, Stay of Proceedings, Telecommunications Ordinance S33, Personal Data (privacy) Ordinance
Source Language
EN
Criminal Law Evidence Procedure Privacy Law Administrative Law Telephone Interception Disclosure of Unused Material Abuse of Process +3 more

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Parties

Li Man-tak (D1)

Defendant/applicant

D4

Co Defendant

HKSAR

Prosecution/respondent

Procedural Posture

Criminal Conspiracy to Offer Advantages to an Agent / Trial — Voir Dire and Ruling on Permanent Stay Application

Legal Issues

  1. 1 Whether telephone intercepts are disclosable evidence
  2. 2 Whether the prosecution performed its duty of disclosure in respect of intercepted material
  3. 3 Whether non-disclosure/destruction of intercepted material prevents a fair trial

Ratio Decidendi

Telephone intercepts obtained under section 33 and treated as non-evidential intelligence are not disclosable in the form of original recordings; the Chief Executive's warrant power under s33 does not extend to amassing evidence for prosecution, ICAC had no obligation to retain original tapes for trial, destruction under its policy does not amount to a material irregularity or abuse of process, no demonstrable prejudice to D1 was shown, and therefore the permanent stay application is refused.

Court Disposition

Permanent stay application by D1 refused

Orders

  • Permanent stay of proceedings refused
  • Proceedings to continue against the defendants