Court urged to quash snooping convictions

PUBLISHED : Wednesday, 26 July, 2006, 12:00am
UPDATED : Wednesday, 26 July, 2006, 12:00am

Two convictions gained on the basis of covert surveillance should be quashed because the practice is unlawful, the Court of Appeal was told yesterday.

It was the second case involving snooping to come before the court since the Court of Final Appeal ruled earlier this month that covert surveillance is unconstitutional.

The argument was used in an effort to overturn bribery convictions against Li Man-tak, 39, the jailed executive director of Kwong Hing Group.

Senior counsel Andrew Macrae, for Li, appealed against a ruling last year by District Court Judge Fergal Sweeney in a case that saw the first challenge to the Independent Commission Against Corruption's bugging tactics.

He said the judge, now retired, had created a 'double breach' by using his discretion to accept the evidence even after he ruled that the ICAC's surveillance of Li had been unlawfully obtained.

Li and securities company research analyst Nicholas Tan Chye-seng were convicted on May 27 last year on two counts of conspiracy to bribe. Li was jailed for three years and Tan for two.

The defence had applied for a stay of proceedings and asked the court to rule out the surveillance evidence on the grounds that the bugging was in breach of the Basic Law and Bill of Rights by infringing on the constitutional guaranteed rights of privacy and freedom of communication.

'When a judge exercises his discretion [to decide on the admissibility of the surveillance evidence], he takes the starting point of considering the significance and extent of the breach of privacy,' Mr Macrae told the court yesterday.

'He then must look at other relevant factors after which, in this case, the surveillance evidence should have been thrown out.'

By merely saying that the covert surveillance was unlawfully conducted, Judge Sweeney had failed to acknowledge in his ruling the significance and seriousness of the breach of privacy.

He further argued that Judge Sweeney had adopted a wrong approach when considering 'other relevant factors', as he exercised his discretion on the surveillance evidence.

Noting that Judge Sweeney had said in his verdict that the surveillance evidence was only 'supportive' to the case, he said it was crucial and had a fundamental impact on conviction or acquittal.

Replying, deputy director of public prosecution Ian McWalters SC said 'the purpose of discretion was to ensure the fairness of the conduct of a trial', and a trial judge should only exclude evidence that had prejudiced a fair trial.

The question of the admissibility of the evidence was not about securing a conviction or reducing the chance of an acquittal, but to ensure the fairness of the trial.

'In reality, the discretion could only be exercised in one way - to allow the [surveillance] evidence,' Mr McWalters said.

The hearing continues today.