HKSAR v Ip Tsz Yau
Court of Appeal
Criminal Appeal No. 199 of 2015
Lunn V-P, Macrae and McWalters JJA
26 January 2017

Prosecution’s duty of disclosure – non-disclosure of police notebooks – potentially relevant and disclosable – non-disclosure rendered conviction unsafe

D was convicted of assaulting a police officer in the execution of his duty, trafficking in a dangerous drug and possession of a dangerous drug. The prosecution case was that, during an anti-narcotics operation by eight police officers, including PW1–3, D was intercepted after leaving his flat and ketamine was found on D and in his flat. At trial, PW1–3 denied that anyone else had been at the scene, apart from the police, D and his neighbour, DW1. This was contrary to D’s testimony that he was outside his flat chatting with two friends, L and DW2, when someone suddenly pulled him away and he was pressed to the ground; L and DW2 were taken to a rear staircase, while D was taken to another staircase where he was threatened, assaulted and the ketamine was planted on him and in his flat. Although DW1–2 confirmed D’s evidence, the Judge rejected D and DW1–2’s testimony. The Judge, however, stated, “Although [DW1–2’s] evidence do not say directly as to how the police had threatened [D] and planted the drugs …, their evidence, if accepted, would cast a reasonable doubt on the credibility of the prosecution witnesses.” D appealed against his convictions, relying on the prosecution’s non-disclosure of the notebooks of the other five police officers, Xs, at the scene (the “Notebooks”), which each verified L and DW2’s interception in the vicinity of D’s flat, albeit a few minutes after D’s arrest. D sought to admit the Notebooks as fresh evidence. The prosecution applied to admit a floor plan to show the different times and locations of D’s arrest, and L and DW2’s interception, and emphasised that the latter occurred after PW1–3 had entered D’s flat and so even if the Notebooks had been disclosed, they would not have undermined the prosecution evidence.

Held, allowing the appeal by quashing the convictions, but ordering a retrial, that:

  • The Notebooks were disclosable. Xs were present at the scene as part of the police operation and the Notebooks were potentially relevant. However, there was no bad faith in the prosecution not disclosing the Notebooks.
  • Given the defence case to be advanced, namely that Xs had played a far more prominent part not only in D’s arrest but the interception of L and DW2 at about the same time, D’s counsel would not only have wanted but also needed to see the Notebooks, yet made no such request of the prosecution. However, the suggestion that the defence deliberately did not ask for such disclosure was rejected. Once it became clear that the material was potentially relevant to the issues before the Court, it was incumbent on prosecuting counsel to disclose the Notebooks to the defence. Although the Notebooks were not passed to him and were in a foreign language, that could not abrogate the vital and continuing duty to make necessary and timely disclosure.
  • The evidence of the Notebooks and the plan should be admitted for this appeal as both necessary and expedient in the interests of justice. By virtue of the non-disclosure of the Notebooks, and the essential findings of credibility relating to all defence witnesses including D, which this material might be said potentially to impugn, the verdict could not be regarded as safe and satisfactory.  Had the Judge known that Xs had all confirmed the interception of L and DW2 at the scene that day, he could not have found it an “irresistible inference” that D, DW1–2 had all lied about the latter’s presence.

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