HKSAR v. McCALL HOWARD KENNETH AND ANOTHER

HKSAR v. McCALL HOWARD KENNETH AND ANOTHER

Searches of both premises were lawful: Mong Kok SDS officers, notified late and acting independently, faced impracticable circumstances to obtain a warrant at the material times so s52(1)(e) justified warrantless entry/search; alternatively, even if searches were unlawful, the court exercised its discretion under HKSAR v Muhammad Riaz Khan to admit the product of the searches because admission was conducive to a fair trial, reconcilable with the rights at stake and unlikely to encourage future breaches given the factual context (no bad faith and systemic change expected).

Citation
HKSAR v. McCALL HOWARD KENNETH AND ANOTHER
Parties
Prosecution: HKSAR; 1st Accused: McCALL HOWARD KENNETH; 2nd Accused: LAM AROON
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
25 September 2017
Case Number
HCCC446/2016
Procedural Posture
Criminal Indictment for Drug Trafficking / Ruling on Admissibility of Evidence (pre‑trial)
Outcome
Product of searches of Hennessy Road and Canal Road West admitted into evidence against the 1st Accused
Legal Topics
Search and Seizure, Warrants and Staleness, Basic Law Article 29 (inviolability of Premises), Dangerous Drugs Ordinance S52(1)(e), Admissibility Discretion, Public Interest and Non‑publication
Source Language
EN
Constitutional Law Criminal Law Evidence Law Police Procedure Drug Enforcement Law Search and Seizure Warrants and Staleness Basic Law Article 29 (inviolability of Premises) +3 more

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Parties

HKSAR

Prosecution

McCALL HOWARD KENNETH

1st Accused

LAM AROON

2nd Accused

Procedural Posture

Criminal Indictment for Drug Trafficking / Ruling on Admissibility of Evidence (pre‑trial)

Legal Issues

  1. 1 Whether searches of Hennessy Road and Canal Road West premises were lawful
  2. 2 Whether search warrant dated 20 Nov 2015 was stale and thus invalid
  3. 3 Whether section 52(1)(e) Cap 134 justified warrantless entry/search because obtaining a warrant was not reasonably practicable

Ratio Decidendi

Searches of both premises were lawful: Mong Kok SDS officers, notified late and acting independently, faced impracticable circumstances to obtain a warrant at the material times so s52(1)(e) justified warrantless entry/search; alternatively, even if searches were unlawful, the court exercised its discretion under HKSAR v Muhammad Riaz Khan to admit the product of the searches because admission was conducive to a fair trial, reconcilable with the rights at stake and unlikely to encourage future breaches given the factual context (no bad faith and systemic change expected).

Court Disposition

Product of searches of Hennessy Road and Canal Road West admitted into evidence against the 1st Accused

Orders

  • Admit into evidence the exhibits seized from Hennessy Road premises
  • Admit into evidence the exhibits seized from Canal Road West premises