Hong Kong Case Law: Decisions & Judgments

Topic

Interception of communications

Legal area

Court

16 Apr 2020

HKSAR v. YU LIK WAI WILLIAM AND ANOTHER

Citation

[2020] HKCA 210
Court

Court of Appeal
Case number

CACC237/2015

The Court refused to certify the three points for the Court of Final Appeal: the first was declined as a matter for the Court of Final Appeal to consider if it wishes; the second was refused as not reasonably arguable and because remedial interpretation is an available and appropriate judicial tool to preserve fair trial protections under s61(4) ICSO; the third depended on certification of the second and was therefore refused.
9 Oct 2019

HKSAR v. YU LIK WAI WILLIAM AND ANOTHER

Citation

[2019] HKCA 1093
Court

Court of Appeal
Case number

CACC237/2015

The court held that s.61(4) of the ICSO is capable of a remedial interpretation: the provision must be read to require that any information obtained under a relevant authorization and continuing to be available to the department be provided to the prosecution so that the prosecution may consider whether it meets the statutory disclosure test, and, if so, disclose it to the judge in an ex parte hearing. Reading-in in this manner is a permissible remedial interpretation that cures the constitutional defect without effecting an unlawful legislative amendment, and the prosecutor can apply the sta…
22 May 2012

HKSAR v. MUHAMMAD RIAZ KHAN

Citation

HKSAR v. MUHAMMAD RIAZ KHAN
Court

Court of Final Appeal
Case number

FACC13/2010

The court held that evidence obtained in breach of a defendant's constitutional rights may nevertheless be admitted under a discretionary balancing test: admission is permissible if it is conducive to a fair trial, reconcilable with respect for the right(s) infringed, and unlikely to encourage future breaches. Applying that test to the secretly recorded hotel-room conversation, the recording was properly admitted and the appellant's conviction was upheld.
10 Apr 2012

RE SZETO CYNTHIA

Citation

RE SZETO CYNTHIA
Court

Court of Appeal
Case number

CACV233/2011

The application for leave to appeal was dismissed because the intended judicial review did not meet the established threshold test (Po Fun Chan) and the proposed appeal was without merit, so the court properly exercised its discretion under section 22(1)(b) Cap 484 to refuse leave.
12 Jan 2012

RE SZETO CYNTHIA

Citation

RE SZETO CYNTHIA
Court

Court of Appeal
Case number

CACV233/2011

The appeal is dismissed because the Commissioner had lawfully conducted the statutory examination and concluded it; the applicant failed to show the alleged interception was carried out by a specified department under the Ordinance so the statutory scheme did not apply; the judicial review challenge was time-barred and, in any event, the case was unarguable and lacked realistic prospects of success.
20 Oct 2011

RE SZETO CYNTHIA

Citation

RE SZETO CYNTHIA
Court

Court of First Instance
Case number

HCAL77/2011

Leave refused because the applicant failed to show a reasonably arguable case; the Commissioner had complied with the statutory procedure and was statutorily barred under s46(4) from giving reasons or indicating whether interception had occurred.
28 Jul 2011

HO MAN KONG v. SUPERINTENDENT OF LAI CHI KOK RECEPTION AND ANOTHER

Citation

HO MAN KONG v. SUPERINTENDENT OF LAI CHI KOK RECEPTION AND ANOTHER
Court

Court of First Instance
Case number

HCAL17/2011

Recordings lawfully obtained under Australian authorization do not constitute "telecommunications interception product" under s.61(1) ICSO because the statutory definition of relevant prescribed authorization refers to Hong Kong authorised interceptions; the Australian arrest warrant and attached Court Attendance Notice constituted properly authenticated supporting documents and sufficiently disclosed conspiracy; therefore the habeas corpus application fails and the committal stands.
6 May 2010

HKSAR v. YING JIM MING, JIMMY AND OTHERS

Citation

HKSAR v. YING JIM MING, JIMMY AND OTHERS
Court

Court of First Instance
Case number

HCMA432/2009

s.61(4) ICSO is not unconstitutional in principle and, on the facts, nondisclosure of interception product did not cause shown prejudice making a stay necessary; the magistrate properly conducted voir dire, admitted contested evidence lawfully, and reasonably found the accomplice witness CHU credible despite non-material discrepancies; the evidence sufficed to convict each appellant, so appeals dismissed.
21 Dec 2006

SECRETARY FOR JUSTICE v. SHUM CHIU AND OTHERS

Citation

SECRETARY FOR JUSTICE v. SHUM CHIU AND OTHERS
Court

Court of Appeal
Case number

CACV51/2006

The judge erred in refusing the prosecution leave to call evidence because without hearing the law enforcement authority's factual justification the court could not properly weigh whether the covert recording of a suspected privileged meeting amounted to an affront to the public conscience that would warrant a stay; the matter must be remitted for rehearing in accordance with law.
13 Sept 2006

HKSAR v. LI MAN TAK AND ANOTHER

Citation

HKSAR v. LI MAN TAK AND ANOTHER
Court

Court of Appeal
Case number

CACC303/2005

The trial judge properly exercised his discretion to admit covertly obtained audiovisual records after a balancing exercise considering the privacy breach, lack of oppressive conduct, reliability and public interest in detection of serious corruption; accordingly the 1st applicant's convictions on charges 1 and 2B are safe. However the conviction of the 2nd applicant was unsafe because the judge erred by treating the 2nd applicant's inconsistent statements (lies) as the sole or sufficient foundation to admit the Tang Court recording under the co-conspirator's rule; that error rendered the 2nd…