HKSAR v. Yip Kai Foon

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.138
(Criminal)

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1997, No.139
(Criminal)

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Coram: Hon. Power, V.-P., Mortimer, V.-P. & Mayo, J.A.

Date of Hearing: 19 November 1998

Date of Delivery of Judgment: 8 December 1998

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. It is necessary to outline the history of this matter.

2. In October 1985, the applicant Yip Kai-foon, was convicted on two counts of handling stolen jewellery and on two firearm offences. He received a total of 18 years' imprisonment. After further proceedings, this was reduced to an overall sentence of 16 years.

3. On 24th August 1989, the applicant escaped from Queen Mary Hospital, where he had been sent from Stanley Prison for examination following complaints of stomach pain. While escaping, he kidnapped the driver of a van and his son.

4. The three counts in HCC No.271 of 1996, one of escaping from legal custody and two of kidnapping, arose out of this incident. He then disappeared for more than six years but was apprehended on 13th May 1996 when he was spotted with other men by patrolling police officers in Victoria Road in the Western District of Hong Kong.

5. It was the prosecution case that there was an exchange of shots between the applicant and the police while he and his party were trying to escape and that he suffered a gunshot wound which has left him paralyzed from the waist down. This incident was the basis for the four counts in HCC 270 of 1996, one of possession of arms and ammunition, one of use of arms and ammunition with intent to resist arrest, one of possession of an explosive substance with intent to endanger life or property and the alternative count of possession of an explosive substance contrary to s.55 (1) of the Crimes Ordinance. The applicant was arrested after the incident and was committed for trial in Eastern Magistracy on 21st August 1996.

6. In the months following his arrest, his personality and activities were sensationalized in the media. Because of this, an application for stay of the proceedings under both indictments was made before Stuart-Moore J. (as he then was) on the ground that the pre-trial publicity had made a fair trial impossible. This application was heard from 29th to 31st January 1997 and was refused.

7. The trial itself took place between 10th February and 10th March 1997.

8. It was the prosecution evidence that just after 4 o'clock in the morning of 13th May 1996, the applicant and others were surprised by police officers patrolling in uniform when coming out of an alleyway that leads into Sai Ning Street in Hong Kong Island's Western District. It was alleged that the applicant was in possession of guns, ammunition and 9 blocks of TNT at that time, and that he used one of the guns to hold back the police. There was then a chase on foot during which the police fired four times and the applicant fired twice.

9. The applicant did not give evidence but the suggestions put by Mr. McKay, his counsel in the early part of the trial, and by Mr. Kwok, his counsel in the later part, were that the applicant was with a group of illegal immigrants when they were approached by the police. It was put that two of the group produced pistols when asked to show their identity cards and took the police hostage, and that they then agreed to let the police go on condition that they said nothing but that after release one of the police started to fire indiscriminately and hit the applicant, who had, at all times, been empty-handed. It was suggested that the police then planted evidence on the applicant and stole money from him.

10. The applicant was convicted on the first three counts.

11. On Count 1, he was sentenced to 13 years, on Count 2, to 20 years and on Count 3, to 18 years. The sentences on Counts 1 and 3 were ordered to be concurrent with each other and the sentence on Count 2 was ordered to be partly concurrent and to the extent of 5 years consecutive. This made a total of 25 years on HCC 270 of 1996.

12. The applicant had pleaded guilty to the offences under HCC 271 and was sentenced on Count 1 to two years' imprisonment and on Counts 2 and 3 to three years' imprisonment on each count. Those two sentences were ordered to be concurrent but consecutive to Count 1, making five years, in all which was ordered to be consecutive to the 25 years on HCC 270, making an overall sentence of 30 years, which was ordered to be commenced at the expiration of the prison sentence which he was then serving.

13. The applicant now seeks leave to appeal against his convictions and sentences under both indictments.

14. The ground of appeal argued by Mr. Plowman, S.C., with him Mr. Kwok, submits was that the judge erred when he refused to stay the proceedings.

15. Before turning to the appeal proper we must dispose of two preliminary matters.

16. When the matter was first called on for hearing of the appeal, the court, itself, queried whether the appeal was competent, given that the applicant could, if he contended that the judge was wrong, to refuse a stay, in effect, have put the ruling to the test by challenging the array. It was suggested that it may be arguable that, if he failed to avail himself of this right, he could not thereafter be heard to complain that the judge had been wrong to rule as he did on the application to stay. In the outcome, the argument before us on this matter was brief as the court was satisfied, having been referred to R. v. Andrews, an unreported decision of the English Court of Appeal dated 14th October 1998, that whether or not an applicant had sought to challenge the array, the "judge's decision is of course open to review by this court because at the end of the day this court has to decide whether the conviction of an appellant is safe or unsafe". (Roch L.J., at p.23 of the transcript.)

17. The second preliminary matter was raised by Mr. Cross, S.C., prior to the adjournment on the first day of hearing. He submitted that it was not open to the applicant on the material that was before the court to appeal against the convictions entered after his pleas in HCC 271. We accept as correct the statement in R. v. Lee (Bruce), (1984) W.L.R. 578, of Ackner L.J. at 583:

"The fact that the applicant was fit to plead; knew what he was doing; intended to make the pleas he did; pleaded guilty without equivocation after receiving expert advice; although factors highly relevant to whether the convictions on any of them were either unsafe or unsatisfactory, cannot of themselves deprive the court of the jurisdiction to hear the applications."

18. We accept that the applicant is not debarred from appealing by reason of his plea. If, however, an applicant is to have any chance of success in his appeal, he must, as was done in Lee's case, establish that there is some overriding factor which makes the conviction founded on the unequivocal plea unsafe and unsatisfactory. In the present case, the applicant advances no such factor and his application for leave to appeal against his convictions founded on his plea must, therefore, fail.

19. We turn to the appeal proper.

20. In order to deal comprehensively with the grounds of appeal, it is necessary to set them out in full.

"1. The learned trial judge erred in refusing to grant a permanent stay of proceedings in respect of both indictments in High Court Case Nos. 270 and 271 of 1997 upon the ground that the pre-trial publicity had been so prejudicial that it was no longer possible to hold a fair trial.

Particulars

(i)	(a) In deciding whether he should exercise his discretion the learned trial judge adopted the wrong test, namely that: 'I would have to be satisfied on a balance of probabilities that the applicant has suffered serious prejudice to the extent that no fair trial can now be held.' (b) In considering the effect of the film the learned trial judge applied the wrong test, namely that referred to in particular (i)(a) above, by holding that: 'The potential prejudicial effect of such a film is of course difficult to gauge, but I am confident it is only slight'.
(ii)	in considering the exercise of his discretion the learned trial judge failed to have regard, or proper regard, to such matters as the likely issues at trial and the likely effect of the prejudicial material on those issues.
(iii)	The learned trial judge failed to give due weight to the nature of the prejudicial material and to the fact that the material in this case is generally regarded by the courts as giving rise to the most serious prejudice.
(iv)	(a) The learned trial judge erred in assuming that prospective jurors would somehow be able to recognize what they had seen/read about the applicant as fiction. (b) The learned trial judge erred in holding that only the publicity of matters which are or are purported to be factually accurate and which should not otherwise be made known to the jury can justify a stay. (c) There is no evidence or evidential basis which entitled the learned trial judge to come to the conclusion that: 'no one with an ounce of common sense or intelligence would mistake this film for anything that purported to be factually accurate.' (d) The learned trial judge contradicted himself when, in the same breath, he said that whilst the potential prejudicial effect of the film is difficult to gauge, he was confident that it was only slight.
(v)	The learned trial judge failed to give proper regard to the fact that the applicant was well known and that prospective jurors would be more likely to recall what they had read/heard about him months before than they might in more ordinary cases.
(vi)	In all the circumstances of the case, the learned trial judge erred in holding that the lapse of time, the solemnity of the occasion and the stern warnings of the trial judge could ensure a fair trial despite his finding that what he had seen and read was potentially prejudicial.

2. The learned trial judge's refusal to exercise his discretion to stay the proceedings was in any event not justified in all the circumstances.

3. In all the circumstances the convictions of the applicant were unsafe and unsatisfactory."

21. We think it necessary also to set out in full the ruling of the judge as it details not only the material which he had to consider but also the way in which he dealt with that material.

"Court: In about October 1985, YIP Kai-foon, the applicant, was convicted on two counts of handling stolen jewellery and on two firearm offences. He received a total sentence of 18 years imprisonment. After further proceedings, which at one stage reached the Privy Council, the Court of Appeal ultimately reduced the overall sentence to 16 years.

On 24 August 1989, whilst serving his sentence, the applicant escaped from Queen Mary Hospital. He was not apprehended until 13 May 1996, at which time he was seen in Kennedy Town. He was arrested after allegedly exchanging shots with the police. The escape and subsequent kidnapping of a van driver and his son in 1989 are the subject of indictment No. 271. The 1996 events in Kennedy Town, which give rise to serious firearms offences, are the subject of indictment No. 270.

The first of these trials is due to commence on 10 February 1997. The second trial is listed to start as soon as the first is completed. However, in the light of a number of articles appearing in magazines, together with a film that has been loosely modelled on what is alleged to have been the criminal lifestyle of this applicant, I am now asked to stay these proceedings against him permanently.

The film and the magazine articles are set in the context of other news reports, which have given the applicant a high profile. Mr. GROSSMAN QC, on his behalf, has argued that some of the publicity about this applicant has been so adverse to him that it would now be impossible to hold a fair trial. This is because, he submits, there is a serious risk that potential jurors may have been so prejudiced against the applicant from what they have seen or read that, whatever instruction they might be given by the trial judge, it is more probable than not that some serious prejudice will remain lodged in their minds against him.

There is general agreement about the legal basis for this application. In the R. v. George TAN Soon-gin, High Court case Nos. 443 of 1993 and 50 of 1994, I had cause to review the authorities as they relate to stay applications generally, and to adverse pretrial publicity in particular. I note that the applicant's list of authorities contains references to two law reports only, which were not cited in the TAN case. Those are R. v. Lo Chak-man, No. 2 (1994) 4 HKPLR 467; and YIP Kai-foon v. Wang Fat Film Production Company Limited, High Court case No. A8870 of 1996, 9 August 1996, which remains unreported. There was a third report; namely, R. v. West (1996) 2 Criminal Appeal Reports 374, which was referred to in the TAN case but was not then in print.

The prosecution's list of authorities adds nothing further to the list of cases cited or referred to in argument during the Tan stay application. Accordingly, there is no purpose in conducting a further review of the authorities. I shall proceed on the accepted basis that I have a discretionary power to stay these proceedings if it would be an abuse of the process of the court for this case to proceed to trial as the result of adverse pretrial publicity.

In deciding whether to exercise my discretion - which is only be used in the most exceptional circumstances - I would have to be satisfied on a balance of probabilities that the applicant has suffered serious prejudice to the extent that no fair trial can now be held.

Mr. Grossman QC has submitted in the course of his lengthy, but carefully presented, arguments that this would be the only reasonable view for the court to take. He has argued with some force that the adverse publicity takes a particularly serious and unfair twist in the examples he has brought to my attention, because much of it involves details about the applicant which are sheer invention, in order to make the stories about him more saleable.

Mr. Grossman has rightly set out to distinguish this case from several leading English cases involving grave crimes which were tried in the aftermath of considerable adverse publicity. Those cases had attracted publicity on a wide scale and, in some of them, over a long period of time, because of a very real public interest in what was taking place. However, a common factor to most of those cases is that the reporting was fair, accurate and reasonable.

The classic example of that is to be found in the Ronald Kray case reported in the 1969 volume 53 edition of the Criminal Appeal Reports at page 412, where Mr. Justice Lawton was about to start a second murder trial, after wide publicity had been given to Kray's murder conviction in the first trial. He expressed himself as having enough confidence in his fellow countrymen to think that they were capable of looking at a matter fairly and without prejudice, even though they might have to disregard what they read in a newspaper.

However, there are some other reported cases where the comment fell far short of being fair, let alone accurate. In R. v Taylor and Taylor, (1994) 98 Criminal Appeal Reports 361, the publicity that attended that trial was described by Lord Justice McCowan as 'unremitting, extensive, sensational and misleading'.

Whilst that case was not a stay application, in quashing the convictions, the English Court of Appeal felt unable to order a retrial because, in their judgment, no fair trial could now take place. That was so, despite a long lapse of time between the trial and the appeal. In giving the judgment of the court, Lord Justice McCowan at page 369 said this:

'But we find it quite impossible to say that jury were not influenced in their decision by what they read in the press.

The principle as enunciated in the case of McCann (1991) 92, Cr.App.R. 239 is, that if the media coverage at trial has created a real risk of prejudice against the defendants, the convictions should be regarded as unsafe and unsatisfactory.

We were troubled, at one stage, by the fact that defence counsel did not, at trial, ask the judge to discharge the jury because of the press coverage. Mr. Nutting has, however, with typical fairness, provided the answer.'

A few lines later:

'We are satisfied that the press coverage of this trial did create a real risk of prejudice against the defendants ...'

In the unreported case of R. v. Knights at Harrow Crown Court on 3 October 1995, His Honour Judge Sanders observed that certain reporters were:

'... determined to run a hate campaign against Knights unchecked by their editors and without any regard to the interests of justice ...'

Proceedings in that case were stayed, as they were in R. v. Reade. Morris and Woodwiss, an unreported case, dated 15 October 1993, at the Central Criminal Court, where Garland, J. observed that it was, to quote:

'It was impossible adequately to convey by description the volume, intensity, and continuing coverage ...'

in describing the prejudice suffered by the police officers accused of fabricating evidence against the Birmingham - the so-called Birmingham Six. These cases illustrate, apart the important and helpful guidance they provide on the application of the discretionary power to stay proceeding in such circumstances, that each case needs to be very carefully examined on its own facts with the principles from the authorities clearly in mind.

I propose now to look at what are said to have been the worse examples of the adverse publicity in this case. I shall deal firstly with the film about which there is complaint, and lastly with the magazine articles which have been specifically drawn to my attention. While I do so, I have in mind the general context of news about the defendant since the time of his arrest to the present day.

Within a few weeks of the applicant's re-arrest in 1996 his solicitor, Mr. Antony Kwan, read in a newspaper that the Wang Fat Film Production Company had produced a film entitled, in one of the translations I was given, 'Life Will Never Be Twice'. The publicity claimed that the film reflected the real story of YIP Kai-foon. A letter to the film producer met with no response. Mr. Kwan went to watch the film on 2 August 1996. In brief, and I accept the general description that I have been provided with about this film, it described the applicant as a murderous robber.

Mr. Recorder Tang, QC, in the YIP Kai-foon v. Wang Fat Film Production Company Ltd. case, granted an application on 9 August 1996 for the continuation of an injunction against the film company. He said at page 6 of his judgment, to quote:

'I have already mentioned that the film also shows the character based on the plaintiff to be guilty of murder and robbery. It will bring, in my opinion, the administration of justice into disrepute if, prior to guilt being established in a court of law, a notorious accused person can be portrayed as guilty on the screen. Here, there is a real risk that justice will not be done, at least it will not manifestly have been seen to be done.'

The film had only run for a few nights before the original injunction was imposed. The new and more serious development followed when it was learned in September 1996 that a video was available in the shops. The relevant authorities appear to have done very little to prevent this despite efforts on behalf of the applicant to draw attention to the development. By 28 January 1997, the film now entitled 'King Of Robbery' was listed as either the fourth or fifth most popular film in a chart of the top 50 films at several well-known video rental shops in central. Mr. Chapman points out, quite rightly, that there has been considerable editing to the original film, but it is nevertheless a highly unpleasant characterization of someone who many would perhaps recognize as intended to be loosely based on the applicant's criminal activity.

There is, however, a prominent disclaimer in the opening credits, and the film does fit the fairly typical mode of make-believe cops-and-robbers movies for which Hong Kong has more than its fair share. Balancing all these considerations together, I am quite satisfied that no one with an ounce of common sense or intelligence would mistake this film for anything that purported to be factually accurate. The potential prejudicial effect of such a film is of course difficult to gauge, but I am confident it is only slight. I will come later to drawing a distinction between this kind of film and that which purports to be serious news.

I turn now to the written articles which have been brought to my attention. I shall leave aside articles which, it is accepted, amount to legitimate press comment about a case which has aroused great public interest. All the principle offending articles appeared in the Chinese press, land they are as follows.

One, East Week, No. 186 dated 16 May 1996. Two, Next Magazine, No. 323. It seems this was a May edition. Three, Ming Pao Magazine dated 19 May 1996. Four, Next Magazine dated 28 June 1996. Five, East Week dated 4 July 1996.

Although I was also invited to consider a number of other articles including those dated 20, 26, and 30 July, 1, 2, and 28 August 1996, and 11 January 1997, all of which appeared in the Oriental Daily News, and an article in East Week dated 25 July 1996, the significance of these items, it seemed to me, was far less than the others to which I have been referred. It is therefore the list of five offending articles on which I have concentrated for the most part.

The point made on behalf of the applicant is a similar one to that which Mr. Grossman made when describing the potentially damaging effect of the film. It is simply this. These articles go well beyond what any free society would recognize as the justifiable reporting of a current news item of public interest, added to which the target of those reports, it was known, would be due to face trial on very serious criminal charges. These articles do not attempt to reflect the truth, but they pretend to do so. Using the typical style of gutter journalism, it is submitted that these articles by East Week, Next, and Ming Pao Magazine pretend to have a true story in order to mislead the public into purchasing those journals.

In truth, the stories were a fiction based on rumour or pure guesswork. They do not stand the test of even the most superficial kind when comparing the applicant's factual background with the stories appearing in these magazines. No doubt, for good commercial reasons, the magazines sensed that to spell out the truth would be to spoil the good story. Accordingly, they invented the facts and sold them as the truth. I am not here to adjudicate on contempt.

However, in setting the tone of these articles, I accept for the purposes of these stay proceedings that they suggest that the applicant is a cold-blooded robber who is a specialist with firearms and who is well-connected to certain criminal organizations. Most significantly, the article in the Ming Pao Magazine sets out a list of nine highly publicized armed robberies which, it alleges, were committed by the applicant while he was on the run from police between June 1991 and April 1992. In each robbery, it is alleged that the applicant stood in the doorway as a lookout with an AK 47 which he would have no hesitation in firing in the event that anyone approached. He was described as fearless, heavily armed, and proud to challenge the police.

Mr. Grossman, can I just pause there. He's never been charged with any of those cases?

Mr. Grossman: No, my Lord.

Court: At no time has this applicant ever faced the charge in relation to any of those robberies.

Next Magazine, in May of 1996, was equally keen to portray the applicant as some kind of legendary figure, and under the heading "half-life legend" he is described as a ruthless legend among criminals and police. The article continues by giving graphic details about the applicant's criminal history which in some cases must be based upon pure speculation. The details are apparently designed to bolster the terrifying image that the magazine is seeking to put forward in an effort presumably to boost the sales of their publications. It goes without saying that almost everything in the article is factually incorrect. However, even if its content was correct, that would provide a reason to any responsible editor or journalist not to publish any of those details before the trial. On one view, it is all the more important when portraying potentially prejudicial fiction as fact that this is not done until after any trials that are outstanding.

Next Magazine is no stranger to the courts. In the R v Lo Chak-man No. 2 case, I noted it was this publication that again offended in similar fashion. In that instance, it was published in 1992 an article in respect of a drug/money laundering case which was due to be tried in the courts. They quoted prejudicial information which had allegedly been gleaned from unnamed police sources.

The stay of the criminal trial was not ordered by Mr. Justice Gall as the article was a small one, it stood alone, it was only published once, and the trial was not due to be heard until October 1994. It is contended on behalf of the applicant that the lies and falsehoods contained in the Next article during the month of May were aggravated by what appeared in their June edition. This included further speculative revelations which appeared to belong in a work of fiction. The magazine maintains, however, that the facts revealed relate in truth to this applicant.

The East Week Magazine is rather more general in its disreputable attack upon the applicant's character. In common with the articles from the other magazine to which I have referred, they are not even able to report with accuracy that the applicant was sentenced to a long term of imprisonment for handling stolen jewellery. Presumably, to report the fact that he was acquitted of the charges of robbery on jewellery shops from which the stolen goods came would have spoiled the story appearing under the headline "cold-blooded robber, the number one enemy of the police".

I have not attempted to set out in any detail the stories that have appeared in the three magazines. Mr. Grossman describes them as irresponsible because these untrue accounts are unfair to a man about to face trial. Even if the information was true, which, on any view, all but a small fraction is not, it is precisely the sort of material that is never revealed to a jury for fear that it may prejudice him. In the event that a jury is told by some mishap or inadvertence about a highly prejudicial detail, the usual remedy is to discharge them and to start again with a fresh jury that is untainted by what the previous jury heard.

Accordingly, it is Mr. Grossman's submission that there is now, on account of the film and those publications, and other publications of a light kind that he has brought to my attention, a serious risk that a future jury may be so tainted by prejudice as the result of grossly adverse and unfair pre-trial publicity that a fair trial is probably no longer possible.

Mr. Chapman has responded to these submissions by accepting, as he clearly must, that the applicant has achieved a high degree of notoriety. However, he argues that it is well established in Common Law jurisdictions that juries are quite capable of deciding cases on the evidence placed before them during the trial without regard to what they may have heard outside the courtroom.

Now Mr. Chapman relies on the principle propounded in R. v. Glennon 1992 at 173 Commonwealth Law Reports at 592 Justice Brennon at page 613 said:

''From these formulations it appears that some degree of risk, albeit not a substantial risk, to the integrity of the administration of criminal justice is accepted as the price which has to be paid to allow a degree of freedom of public expression when it is exercised in relation to a crime that is a topic of public interest. Clearly enough, though the fairness of a criminal trial may be at some risk in such a case, the trial proceeds. If a punishable contempt occurs, ex hypothesi there is-a real risk of prejudice - perhaps, to adopt the formulation by Chief Justice Mason, a substantial risk of serious interference with a fair trial. But it does not follow that, where a punishable contempt of court has been committed, the trial must be aborted. Administration of the criminal law cannot be made hostage to conduct amounting to contempt of court, even if the contempt be flagrant. If it were otherwise, the perpetrators of crimes which shock the public conscience, would oftentimes go untried and unpunished, for pre-trial publicity prejudicial to an accused is stimulated by the notoriety of the accused and the heinousness of the crime. Yet it would undermine the criminal law's protection of society and its members to refuse to allow the law to take its ordinary course in these cases. No community governed by law could acknowledge that persons outside the control of the State could possess such a capacity for disrupting the administration of criminal justice".

At page 614 Mr. Justice Brennon continued:

"Of necessity the law must place much reliance on the integrity and sense of duty of the jurors. The experience of the courts is that the reliance is not misplaced".

Now as Mr. Chapman points out, the principle formulated in Glennon's case is reinforced by the recent observations of Lord Taylor, the Lord Chief Justice in the Court of Appeal in the West case. At page 385 Lord Taylor said this:

'We turn to the press coverage in advance of the trial. There is no doubt that this was extensive and hostile to the Wests. It occurred most fully in two tranches. The first was upon the discovery of the buried bodies. The second followed upon Fred West's suicide. Much of the press coverage was directed at Fred. There were references to 'House of Horrors'. There was criticism of the authorities for failing to stop West's murderous course when he was before the magistrates' court with the applicant in 1973. It is true that there were also reports which were adverse to the applicant, referring to her as a nymophomanic and a prostitute. But, however lurid the reporting, there can scarcely ever have been a case more calculated to shock the public who were entitled to know the facts. The question raised on behalf of the defence is whether a fair trial could be held after such intensive publicity adverse to the accused. In our view it could. To hold otherwise would mean that if allegations of murder are sufficiently horrendous so as inevitably to shock the nation, the accused cannot be tried. That would be absurd. Moreover, providing the judge effectively warns the jury to act only on the evidence given in court, there is no reason to suppose that they would do otherwise. In Kray (1969) 53 Criminal Appeal Reports 412 at page 414, 415, Lawton J. said: "The drama of a trial almost always has the effect of excluding from recollection that which went before". That was reiterated in Young and Coughlan (1976) 63 Criminal Appeal Reports 33 at page 37. In ex parte the Telegraph Plc (1994) 98 Criminal Appeal Reports 91, 98 (1993) and 1 Weekly Law Reports 980, 987, I said:

- this is Lord Justice Taylor speaking in the English Court of Appeal.

'A court should credit the jury with the will and ability to abide by the judge's direction. to decide the case only on the evidence before them. The court should also bear in mind that the staying power and detail of publicity, even in cases of notoriety, are limited and the nature of a trial is to focus the jury's minds on the evidence put before them rather than on matters outside the courtroom'".

I am bound to say that there is much force in all of those sentence. Whilst accepting that it may be necessary in extreme circumstances to order a stay of proceedings on the ground of adverse pre-trial publicity, I have no hesitation in saying that it does not seem to me that this is a case in which I ought to exercise my discretion in favour of the applicant. I accept that what I have seen and read is potentially prejudicial. All of the material about which complaint is made is of a type that is sensational and commercial.

Even assuming that people saw the articles in the magazine and could remember almost 9 months later what they read, it would be difficult to imagine that sensible people being sworn in as jurors in February 1997 could be prejudiced by what they have read. Neither case that they have to try there is any relation to what have been spoken about in those magazines. If there is some overlap, the solemnity of the occasion and the stern warning of the trial judge to decide the case only on what they hear in court and to ignore anything they may have heard outside it would more than counterbalance the ill effects of gutter journalism, however reprehensible that may have been.

What applies to the magazines applies equally to the film. Although it is still on current release and shows like the magazines the distortion of the truth, again no sensible persons could begin to give any credence to such an obviously sensational film in the way that they might have done if it had purported to be a documentary about the applicant's life and life style.

In this context I have taken into account two programmes that were screened on 15 May 1996 that did purport to be serious programmes. They each contained grossly distorted and false information about the applicant. These were Focus On Focus TVB and Hong Kong Today ATV. However, they were a long time ago and any prejudicial effect they may have had has now faded into insignificance. In many of the English cases where consistent reporting of an adverse kind is to be found, the impact is maintained right up to the trial and through the trial creating such obvious unfairness that it may not be surprising that the Court of Appeal has had to step in on occasions

More seriously again, because it only occurred two days ago on 29 January 1997, TVB saw fit to describe the applicant as a notorious gangster. On its own it is not in my judgment a sufficient ground for saying that these charges should be stayed, but I hope that the Attorney General's chambers will remain vigilant and if any further breaches of the rules of contempt are discovered they will be reported to me and any editor who falls foul of the rules from now onwards can expect to be dealt with firmly and swiftly.

I have finally not made reference to the Survey on Media and Justice which was carried out by the University of Hong Kong. This report was commissioned by the solicitors acting for the applicant. It is rightly not relied upon to any great extent by Mr. Grossman, QC. Its findings do not go very far, if at all, towards supporting the argument that public attitudes generally towards this applicant may have been adversely influenced by media reports. In the outcome therefore it's my ruling that this application for a stay of proceedings is failed." (Emphasis supplied.)

22. When a ruling of this kind is called into question, three questions are posed for a Court of Appeal:

i) Did the judge advert to all of the relevant matters?

ii) Did he fully comprehend the significance of each?

iii) Did he deal with those matters in a way which would ensure a fair trial for the defendant.

23. There does not seem to be any complaint as regards (i) but it is contended that (ii) and (iii) should have been answered in the negative.

24. We think it important to deal firstly with Ground 2 as it is impossible properly to deal with the judge's refusal to exercise his discretion without first determining the nature of that discretion and the way in which this court should approach its exercise.

25. Mr. Plowman submitted that the power of the Appeal Court to review the refusal by a judge to exercise his discretion to stay is not limited to cases in which he has erred in principle, or where there is shown to have been no material on which he could properly have arrived at his decision. He submitted that if an appeal court considered that a trial judge's ruling may have resulted in an injustice to the applicant, then it must examine the matter anew and exercise its discretion by way of review. He referred to the following passage in R. v. McCann, [1991] 92 Cr.App.R. 239, and to the words of Beldam L.J. at 251:

"The second matter we have in mind is that when the learned judge considered the application at the trial he was exercising a discretion. To the exercise of that discretion this Court must give great weight. To reverse the judge's ruling, it is not enough that the members of this court would have exercised their discretion differently. We must be clearly satisfied that the judge was wrong; but our power to review the exercise of his discretion is not limited to cases in which he has erred in principle, or there is shown to have been no material on which he could properly have arrived at his decision. The court must, if necessary, examine anew the relevant facts and circumstances to exercise a discretion by way of review if it thinks that the judge's ruling may have resulted in injustice to the appellants. See Evans v Bartlam, [1937] A.C. 473."

26. This ruling appears to be based upon the words of Lord Wright in Evans v. Bartlam at p.486, where he said:

"It is clear that the Court of Appeal should not interfere with the discretion of a judge acting within his jurisdiction unless the court is clearly satisfied that he was wrong. But the Court is not entitled simply to say that if the judge had jurisdiction and had all the facts before him, the Court of Appeal cannot review his order unless he is shown to have applied a wrong principle. The Court must if necessary examine anew the relevant facts and circumstances in order to exercise a discretion by way of review which may reverse or vary the order."

27. We are satisfied that the statements set out above were never meant to indicate that the Court of Appeal could substitute its own discretion for that of the trial judge without it being shown that the judge had by a wrong exercise of his discretion caused injustice. The proper approach is fully set out in Hadmor Productions Ltd. v. Hamilton & Another, (1983) A.C. 191, by Lord Diplock when he said at p.220:

"Upon an appeal from the judge's grant or refusal of an interlocutory injunction, the function of an appellate court, whether it be the Court of Appeal or Your Lordship's House, is not to exercise an independent discretion of its own. It must defer to the judge's exercise of his discretion and must not interfere with it merely upon the ground that the members of the appellate court would have exercised the discretion differently. The function of the appellate court is initially one of review only. It may set aside the judge's exercise of his discretion on the ground that it was based upon a misunderstanding of law or of the evidence before him or upon an inference that particular facts existed or did not exist, which, although it was one that might legitimately have been drawn upon the evidence that was before the judge, can be demonstrated to be wrong by further evidence that has become available by the time of the appeal; or upon the ground that there has been a change of circumstances after the judge made his order that would have justified his acceding to an application to vary it. Since reasons given by judges for granting or refusing interlocutory injunctions may sometimes be sketchy, there may also be occasional cases where, even though no erroneous assumption of law or fact can be identified, the judge's decision to grant or refuse the injunction is so aberrant that it must be set aside upon the ground that no reasonable judge regardful of his duty to act judicially could have reached. It is only if and after the appellate court has reached the conclusion that the judge's exercise of his discretion must be set aside for one or other of these reasons, that it becomes entitled to exercise an original discretion of its own."

28. To put it shortly, we are satisfied that a Court of Appeal can only substitute its discretion for that of a judge below if it is satisfied that he took into account matters which he should not have taken into account or refused to take into account matters that he should have taken into account or, either in his reasoning or in law, was plainly wrong.

29. Before turning to Ground 1, we set out the principal matters of which complaint is made and the way in which the judge dealt with them.

(1) The film and the video tape of that film which purported to portray the life of the applicant. A film was made which purported to be the "real life story" of the applicant. When it was released in August 1996, it was titled: "Life will never be Twice". The publicity for the film suggested that it was based on fact. The film was undoubtedly highly prejudicial and indicated that the applicant was guilty of the offences charged and of other offences. It was injuncted by Mr. Recorder Tang Q.C. on 9th August 1996. Despite this injunction, copies of the film on video cassettes were subsequently found to be available for sale to the public. Further the film company, having re-edited the film, again released it, both as a film for general exhibition and as a cassette with the title "King of Robbers". The video continued to be sold in retail market in Hong Kong up to the date of the application for stay, and it was ranked fifth on the top 50 chart of the most popular rented videos in Hong Kong.

30. The judge said of the film and the video:

".... it is nevertheless a highly unpleasant characterization of someone who many would perhaps recognise as intended to be loosely based on the applicant's criminal activity.

There is, however, a prominent disclaimer in the opening credits, and the film does fit the fairly typical mode of make-believe cops-and-robbers movies for which Hong Kong has more than its fair share. Balancing all these considerations together, I am quite satisfied that no one with an ounce of common sense or intelligence would mistake this film for anything that purported to be factually accurate. The potential prejudicial effect of such a film is of course difficult to gauge, but I am confident it is only slight. I will come later to drawing a distinction between this kind of film and that which purports to be serious news."

(2) The articles in the press and particularly those in May, June and July 1996. There were two articles in East Week, one of which referred to the applicant as the "king of robbers", two in Next Magazine, one in Ming Pao Magazine, one in the Apple Daily and nine in the Oriental Daily News. These contained details of what was said to be the applicant's criminal record and of his criminal activities. They presented a portrait of a ruthless robber and gunman and suggested that he had returned to Hong Kong to perpetrate further criminal offences.

31. Having carefully summarized the content of the articles the judge said:

"Even assuming that people saw the articles in the magazine and could remember almost 9 months later what they read, it would be difficult to imagine that sensible people being sworn in as jurors in February 1997 could be prejudiced by what they have read. Neither case that they have to try there is any relation to what have been spoken about in those magazines. If there is some overlap, the solemnity of the occasion and the stern warning of the trial judge to decide the case only on what they hear in court and to ignore anything they may have heard outside it would more than counterbalance the ill effects of gutter journalism, however reprehensible that may have been."

(3) The television programmes which were screened on the Chinese channels of TVB and ATV on 15th May 1996. These went to air two days after the applicant's arrest and dealt with matters which were to be the subject of the counts which the applicant was to face and assumed guilt thereon as they did in relation to a number of other robbery offences with which the applicant had never been charged. Of these the judge said:

"In this context I have taken into account two programmes that were screened on 15 May 1996 that did purport to be serious programmes. They each contained grossly distorted and false information about the applicant. These were Focus On Focus TVB and Hong Kong Today ATV. However, they were a long time ago and any prejudicial effect they may have had has now faded into insignificance. In many of the English cases where consistent reporting of an adverse kind is to be found, the impact is maintained right up to the trial and through the trial creating such obvious unfairness that it may not be surprising that the Court of Appeal has had to step in on occasions"

(4) Two television news broadcasts in English on TVB which went to air on 29th January 1997, on the same day as the trial judge had warned the press against publishing material which was prejudicial to the applicant. In these broadcasts, the applicant was referred to as a "notorious gangster". His criminal record was referred to as was his propensity to commit serious crimes and his gangster associations. Of these the judge said:

" More seriously again, because it only occurred two days ago on 29 January 1997, TVB saw fit to describe the applicant as a notorious gangster. On its own it is not in my judgment a sufficient ground for saying that these charges should be stayed, but I hope that the Attorney General's chambers will remain vigilant and if any further breaches of the rules of contempt are discovered they will be reported to me and any editor who falls foul of the rules from now onwards can expect to be dealt with firmly and swiftly."

32. When considering the criticism of the way in which the judge dealt with the above matters, it must be remembered that, when gauging their potential prejudicial effect, he was entitled to have in mind the counterbalancing effect which the warning, which he had in mind to give, would have.

33. We turn to Ground 1.

34. In Ground 1(i)(a), it is submitted that the judge adopted the wrong test when he said :

"I would have to be satisfied on the balance of probabilities that the applicant had suffered serious prejudice to the extent that no fair trial can now be held."

35. It is suggested that the judge here indicated that he would apply a test of actual prejudice. His application of such a test would, of course, have flown in the face of all that had been submitted to him both by counsel for the prosecution and by counsel for the defence. He would be applying a burden of proof that no party had ever contended for. When the ruling of the judge is read as a whole, bearing in mind particularly the passages to which we have given emphasis, apart from the one as to which complaint is made, it is manifestly clear that the judge was not applying an actual bias test but was, as he said when dealing with Mr. Grossman's submission, examining the evidence to see whether there was "a serious risk that a future jury may be so tainted by prejudice as the result of grossly adverse and unfair pre-trial publicity that a fair trial is probably no longer possible."

36. Ground 1(i)(b) seeks to reinforce the contention advanced in Ground 1(i)(a) suggesting that the application by the judge of the wrong test can be clearly seen in his use of the words "the potential prejudicial effect of such a film is of course difficult to gauge but I am confident that it is only slight". The argument appears to be that the use of the words "difficult to gauge" and "only slight" indicate that the judge was dealing with actual rather than potential prejudice. We are quite unable to read the passage in that way. We have no doubt that what he was saying was that the film had only slight, to use his words, "potential prejudicial effect", and that he was, in terms, applying the correct test.

37. In Ground 1(ii), it is contended that the judge failed to have regard or proper regard to the likely issues at trial and to the likely effect of the prejudicial material upon those issues. In considering this ground, it should be borne in mind that the onus is on the applicant to establish on the balance of probabilities that a fair trial is not possible. The applicant supported the proposition advanced in this ground with a statement from Phillips L.J. in the unreported case of R. v. Kevin Maxwell & Others, where the judge said:

"In considering this question, the Court has to consider the likely length of time the Jury will be subject to the trial process, the issues that are likely to arise and the evidence that is likely to be called in order to form a view as to whether it is probable that - try as they may to disregard the pre-trial publicity - the jury's verdict will be rendered unsafe on account of it."

38. The issues which the judge should take into account will, of course, vary from one case to another. In many cases, unless adverted to by the defence at the time of the stay application, issues to be raised by the defence will be unknown to the judge. In the present case, the issues, so far as they were known at the time of the stay application, were simple ones. The applicant having pleaded not guilty, the principal issues that would fall for the jury's determination would be ones of credit - Who was to be believed? It could not be foreseen that there would be complicated issues such as might arise in a complex commercial offence - and, indeed, none such did arise. We are satisfied that the judge had fully in mind the issues likely to arise when considering the stay application.

39. Ground 1(iii) contends that the judge failed to give due weight to the nature of the prejudicial material and to the fact that such material in this case is generally regarded by the court as giving rise to the most serious prejudice. It is submitted that the material which purported to set out the applicant's criminal record, criminal background and criminal propensity was material so gravely prejudicial that it crossed the line between prejudicial material that can be safely dealt with by instructions from the judge and prejudicial material of such gravity that a stay must be granted. Mr. Plowman referred to the words of Lawton J. in R. v. Kray & Others, (1969) 53 C.A.R. 412 at 415, where he said:

"The situation, however, is in my judgment entirely different when newspapers knowing that there is to be a later trial, dig up from the past of the convicted who have to meet further charges discreditable allegations which may be either fact or fiction, and those allegations are then publicised over a wide area. This does, in my judgment, lead to a prima facie presumption that any body who may have read that kind of information might find it difficult to reach a verdict in a fair minded way."

40. We appreciate the force of these remarks but they were immediately followed by the observation that:

"It is, however, a matter of human experience, and certainly a matter of the experience of those who practice in the criminal courts, first, that the public recollection is short, and, secondly, that the drama, if I may use that term, of a trial almost always has the effect of excluding from recollection that which went before. A person summoned for this case would not, in my judgment, disqualify himself merely because he had read any of the newspapers containing allegations of the kind I have referred to; but the position would be different if, as a result of reading what he had, his mind had become so clogged with prejudice that he was unable to try a case impartially."

41. Whether or not the minds of potential jurors might have become "clogged with prejudice" was a matter for the judge hearing the stay application bearing in mind that he would conduct the trial and he would determine the nature of the warning which he would give to the jurors. The words used by the judge in his ruling indicate that he was fully aware of the nature and seriousness of the prejudicial material. There is no merit in this ground.

42. In Ground 1(iv)(a), it is submitted that the judge erred in assuming that prospective jurors would somehow be able to recognise what they had seen/read about the applicant as fiction. The passages which were attacked read as follows:

"... satisfied that no one with an ounce of common sense or intelligence would mistake this film for anything that purported to be factually accurate. The potential prejudicial effect of such a film is of course difficult to gauge, but I am confident it is only slight. I will come later to draw a distinction between this kind of film and that which purports to be serious news."

and:

"What applies to the magazines applies equally to the film. Although it is still on current release and shows like the magazines the distortion of truth, again no sensible person could begin to give any credence to such an obviously sensational film in the way that they might have done if it had purported to be a documentary about the applicant's life and life style."

43. The assessment made by the judge was a common sense one which was within his province to make. Having carefully examined the material, he had no doubt that anyone "with an ounce of common sense" would recognize it as sensationalized fiction. There is no warrant for our interfering with that assessment.

44. We now deal with Ground 1 Particular (iv)(b) which contends that:

"The judge erred in holding that only the publicity of matters which are or are purported to be factually accurate and which should not otherwise be made known to the jury can justify a stay."

This ground also relies upon the two passages set out above.

45. The judge was, in our view, not saying that only matters which purport to be factually accurate can justify a stay. He was, in those passages, assessing the weight which should be given to the prejudicial effect of the material. He was doing no more than indicating that anyone with an ounce of common sense would know that what purported to be "a real life story" was, in fact, fiction written by a script writer or journalist dramatizing for the purpose of creating sensation the "life" of the applicant. Further the judge properly, in our view, drew a distinction between material of that kind and material which purported to be serious news.

46. In Ground 1(iv)(c), it is complained that there was no evidence or evidential basis which entitled the judge to come to a conclusion that "no one with an ounce of common sense or intelligence would mistake this film for anything that purported to be factually accurate". The suggestion is that the judge made an assessment which required evidence when there was none. We do not agree. He was making an assessment as to the weight to be given to the prejudicial value of the film. What we have said above applies equally to this complaint.

47. Finally in Ground 1(iv)(d), it is complained that the judge contradicted himself when, "in the same breath", he said:

"The potential prejudicial effect of such a film is of course difficult to gauge, but I am confident it is only slight."

48. As we have already indicated the judge was saying no more than that the exact prejudicial effect of the film was difficult to gauge but that he placed it in the slight category.

49. In Ground 1(v) it is submitted that the judge failed to give proper regard to the fact that the applicant was well known and that prospective jurors would be more likely to recall what they had read/heard about him months before than they might recall in more ordinary cases. This has particular reference to the two Chinese programmes on TVB and ATV which went to air on 15th May 1996, two days after the arrest of the applicant of which the judge said:

"In this context I have taken into account two programmes that were screened on 15 May 1996 that did purport to be serious programmes. They each contained grossly distorted and false information about the applicant. These were Focus On Focus TVB and Hong Kong Today ATV. However, they were a long time ago and any prejudicial effect they may have had has now faded into insignificance. In many of the English cases where consistent reporting of an adverse kind is to be found, the impact is maintained right up to the trial and through the trial creating such obvious unfairness that it may not be surprising that the Court of Appeal has had to step in on occasions"

50. Mr. Plowman argues that the judge failed to have proper regard to the notority of the applicant and to the possibility that prospective jurors would be more likely to recall what they had read about him even months before. While we appreciate the force of this contention, we cannot accept that the judge had lost sight of the fact that he was dealing with an allegedly notorious criminal, about whom there had been considerable publicity. Indeed that was what the application before him was all about. We have no doubt that he had that in mind when he said that those reports would have faded from the public memory. Further it must be remembered that what he had to consider was not whether potential jurors might have heard something adverse about the applicant but whether, given the possibility that they had heard or read some of the prejudicial matter, a properly stern warning from him could ensure a fair trial.

51. Ground 1(vi) contends that the judge was wrong to hold that "the lapse of time, the solemnity of the occasion and stern warnings" could ensure a fair trial. We must examine this ground against the matters raised by Mr. Cross, S.C., who appeared with Mr. Chapman and Miss Denise Chan for the Secretary for Justice. Mr. Cross referred at first to an exchange between the judge and Mr. McKay on 14th February 1997, shortly after the accused had been arraigned:

"Court: Mr. McKay, again can I ask you this. Do you want me to say to the jury when the jury has been sworn something to the effect that they may have heard already about this defendant or do you want to keep it in the general terms that I would normally put to the jury which is that they should try the case only on the evidence, nothing but on the evidence in this case without any reference to the defendant specifically at all.

Mr. McKay: No.

Court: There are two ways of looking at it . If I mentioned the defendant it highlights the fact that he has been referred to before.

Mr. McKay: Yes, rubbing salt into the wounds, so to speak.

Court: But does it? I don't know whether it does or it doesn't.

Mr. McKay: It is a matter of perception. I think for our part in all circumstances a strong general direction might be preferable.

Court: I think so, too. It is afterall exactly what it comes to anyway, the general one, which is to try the case on the evidence alone.

Mr. McKay: According to the oath, yes.

Court: But I shall put it very strongly and I won't make specific reference to the defendant, all right.

Mr. McKay: Right."

52. After the jury were empanelled, the judge said to them:

"Now, this is a trial that is quite likely to arouse some interest and therefore there may well be publicity about it. As you all know from reading newspapers there usually is publicity about cases that go on in these courts and so there is nothing unusual about that. But in a case which has a lot of publicity, it is sometimes very difficult for a jury to concentrate on deciding the case on what happens in the court. Please don't allow yourselves to be influenced at all by anything that happens outside the courtroom. If you see the case referred to on the television or hear about it on the radio or read about it in the papers, please remember that that's nothing whatever to do with the evidence in the case. The evidence is what you hear and see in this courtroom. So don't be influenced by media reports of this case."

53. Shortly thereafter, the judge said:

"Other people's opinions something influence us but it is most important that you are not influenced by anything other than what happens in this courtroom when it comes to your verdict in this case."

54. On 27th February, before the jury heard speeches from counsel, the judge said:

"Could I ask you please to keep an open mind about the case. You have still got to hear speeches and summing-up, and remember what I said to you right at the start, it is very important you decide the case only on the evidence that you hear in court. There has been a lot of words written about this case and things said on television about it. I know you won't be influenced by those. It is the evidence here that must decide this case. So put out of your minds what you read elsewhere and concentrate on what you have heard here. In fact, put it all out of your mind now and come back to the case fresh on Wednesday when we will be able to finish the case next week."

55. Mr. Kwok, who appeared for the applicant at that time, reminded the jury in his address that they must bear in mind their oath or affirmation and give a true verdict according to the evidence.

56. Later in his summing-up, the judge said:

"And I told you all of that at the very start of this trial, but it is particularly important in a trial like this particular one, and I say that because there has been a lot of publicity about this case. You are not trying the case on what you have read or might have read in the newspapers or heard on the television or the radio. You are trying this case - and I know you realize this because I have said it once or twice already on what you have heard in court and nothing else. Don't be influenced by what you have heard outside the courtroom. You probably remember when you took the oath that it was an oath to try this case according to the evidence, to return true verdicts on the evidence, I can't stress it enough."

57. Finally, at the end of his summing-up, the judge said:

"All of these verdicts must be based, as I told you yesterday, upon the evidence that you have heard in the trial. Please put out of your minds completely and utterly anything that you may have heard outside the courtroom which is connected to the case. It has no bearing whatsoever and must not be allowed to influence your verdicts in the case. It is very important that you should remember that at all times. It is the evidence in this case and only the evidence that decide your verdicts."

58. We are well aware that if the judge wrongly refused to exercise his discretion, then the strong warnings which he gave would not cure the matter. In such circumstances, it would be for us to determine whether we would exercise our discretion to order a stay.

59. We are, however, satisfied that the judge was not wrong to refuse to exercise his discretion. The three questions we posed must be answered in the affirmative. The judge fully comprehended the nature of the material acknowledged that it was potentially damaging material but was satisfied that that potential could be set at naught if a sufficient warning was given. He gave a properly emphatic warning. We are satisfied that the judge when he refused to exercise his discretion, did not take into account any matters which he should not have considered, nor did he fail to consider matters which he should have considered, and that he was neither plainly wrong as to the law or in his reasoning.

60. There is no ground upon which we could properly interfere with the judge's refusal to stay.

61. The application for leave to appeal against conviction must be refused.

Representation:

Mr. I.G. Cross, S.C. leading Mr. P. Chapman, S.A.D.P.P. & Miss Denise Chan, S.G.C. (D.P.P.) for the Respondent.

Mr. Gary Plowman, S.C. leading Mr. Eric Kwok instructed by Messrs. Anthony Kwan & Co. for Applicant.