12. Duty of Disclosure

12.1   Article 87 of the Basic Law gives to any accused the right to a fair trial. One of the guarantees of fairness is the full and timely disclosure to the defence of all relevant or possibly relevant material (or material information – and not confined to admissible evidence) available or known to the prosecution, whether it assists in the proof of the prosecution case or, on a sensible appraisal by the prosecution, may reasonably be regarded as:

1. being relevant or possibly relevant to an issue in the case;
2. raising or possibly raising a new issue whose existence is not apparent from the evidence that the prosecution proposes to use; or
3. holding out a real (as opposed to fanciful) prospect of providing a lead to evidence which goes to (a) or (b).

12.2   The duty to disclose is a positive and continuing duty on the prosecution that begins pre-trial and carries through to the end of the criminal process before the courts.

12.3   Material to be disclosed by the prosecution includes:

1. all evidence sought to be relied upon by the prosecution (witness statements, certificates, documentary exhibits, electronic recordings, photographs and/or reasonable access to physical evidence);
2. the previous convictions of an accused, of a complainant, of a prosecution witness or of a deceased victim;
3. known discreditable conduct of a prosecution witness (including disciplinary records) that may reasonably affect his or her credibility where that is likely to be a significant issue in the case;
4. material (including witness statements) known to the prosecution that may assist the defence in the proceedings.

12.4   If relevant disclosable material known to the prosecution is in the possession of a governmental agency or public body, the prosecution should take such steps as are reasonable in the circumstances to obtain it, identify it to the defence and advise of its location if it cannot be obtained.

12.5   Public interest immunity may apply to some such material, where disclosure may harm the general public interest (such as the identity of an informer or undercover officer, information given confidentially to investigators, information that may harm the operations of government including continuing investigations). In those circumstances a balance must be struck between, on the one hand, fairness to the accused and, on the other hand, the protection of the public interest. Occasionally the court should be invited to rule on such issues.

12.6   Material may be covered by legal professional privilege, such as confidential legal advice by a prosecutor to an investigator, and is generally not to be disclosed. Internal records and materials generated by the prosecution in the preparation of the case may not be disclosable.

12.7   The prosecution is not under an obligation to disclose to the defence material that is relevant only to the credibility of a defence witness or of the accused.

12.8   Guidance may also be found in HKSAR v Lee Ming-tee and Securities and Futures Commission (2003) 6 HKCFAR 336, R v Keane (1994) 99 Cr App R 1 and HKSAR v Lau Ngai-chu [2002] 2 HKC 591.