Covert surveillance in Hong Kong

02 November 2005

Edward Alder, Alan Lee

The admissibility of evidence obtained by covert surveillance has long been the subject of intense controversy in Hong Kong. As evidence is often obtained by unconstitutional means, its admissibility in court proceedings can be called into question.

Article 30 of the Basic Law provides that no department or individual may, on any grounds, infringe upon the freedom and privacy of communication of residents except that relevant authorities may "inspect communication" in accordance with legal procedures in order to meet the needs of public security or to investigate criminal offences.

In criminal and civil proceedings in Hong Kong, the courts can use their discretion to exclude evidence if its prejudicial value outweighs its probative force. For example, if a confession is obtained through the use of physical force, the court may conclude that the evidence is so unreliable and prejudicial that its evidential value should be disregarded. However, in contrast to the courts in the USA, where evidence obtained unlawfully is automatically inadmissible, there is no so-called "fruit of the poisonous tree" doctrine in Hong Kong. Accordingly the court has no discretion to exclude evidence simply because it is obtained by illegal means, for example covert activity infringing Article 30.

Two recent Hong Kong court decisions have added fuel to the debate. In R v Lee Man-Tak and 3 others (DCCC 689 of 2004, 22 April 2005) the judge held that evidence in the form of video recordings of meetings obtained by covert surveillance was obtained in breach of Article 30. However, he went on to admit the covert recordings into evidence on the basis that their admission did not cause unfairness to the defendants.

The outcome of R v Shum Chiu and 5 others (DCCC 687 of 2004, 5 July 2005) was very different from that of Lee Man-Tak. In the Shum Chiu case, the police intercepted conversations between the 3rd defendant and his solicitor. The judge ordered that the trial be stayed permanently as against the 3rd defendant due to the interception. Although the judge discussed Article 30 in her judgment, she focused mainly on the issue of safeguarding legally privileged communications rather than the issue of interception.

The position of covert surveillance in civil proceedings is similar to criminal proceedings. All evidence obtained in breach of Article 30 by covert surveillance is admissible unless the subject matter of the evidence is privileged. The fact that the evidence is obtained in breach of Article 30 does not render it inadmissible.

Even though Article 30 purports to offer a "right to privacy", it does not prohibit evidence obtained in breach of it from being admitted into evidence unless the evidence concerned is privileged or its admission is contrary to public policy.