HKSAR v. "X"

HCCC 259/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 259 OF 2015

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REASONS FOR DECISION

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Prologue

1.I handed down my reasons for decision on 11 August 2016 where in conclusion I lifted the travel restriction on the defendant’s terms of bail.  However, soon after he was stopped from leaving Hong Kong which appears to have occurred because of a failure to communicate my decision.  My decision was marked “Not to be published until the conclusion of the trial”.  For the purposes of publishing the decision so that it can be distributed to relevant parties both here and aboard, I have granted an anonymity order and the defendant will be designated as “X”. 

Introduction

2.The defendant in this case was due to face an eight day trial on a single count of trafficking in a dangerous drug commencing on 8 August 2016.  Prior to the trial the defendant made an application for a permanent stay of proceedings on the ground that proceeding to trial would amount to an abuse of power by the prosecution with irremediable prejudice and unfairness to the defendant. 

3.There has been a prolonged dispute between the prosecution and the defence in relation to the prosecution’s duty of disclosure and it is the alleged failure by the prosecution to fulfil this duty that is the basis of the application. 

4.The application was not resolved despite hearings on 23 July and 8 August 2016.  It emerged during the course of the hearings that the defence had obtained further material from Australia that had not been disclosed by the prosecution which appears to be of some relevance to the defence case.  As a result, the application was adjourned to 16 January 2017 to give the prosecution further time to address the issue of disclosure in relation to material outside the jurisdiction. 

5.The defendant had previously been granted bail on conditions on 23 September 2015 which sought to have him reside in Hong Kong and not leave the jurisdiction.  As a result of the proceedings against the defendant having been the subject of adjournments and outstanding for some time, an application was made on his behalf to have the travel restrictions lifted to enable him to return to Australia which I granted. 

6.In light of what had transpired, I indicated that I would give an account of what had happened and the reasons for my decision.  This I now do.

Legal principles applicable to a stay application

7.The court has jurisdiction to stay criminal proceedings in exceptional circumstances, which rests on the court’s inherent power to prevent abuse of its own process: Connelly v DPP [1964] AC 1254. 

8.The common thread in the stay authorities is that the jurisdiction can be invoked where the defendant would not receive a fair trial or where it would be unfair for the defendant to be tried.  As further explained by Ribeiro PJ in HKSAR v Lee Ming Tee (No.1) 4 HKCFAR 149 at 148F-151J a court has jurisdiction to stay criminal proceedings in two circumstances:

(1)  Where a fair trial for an accused is found to be impossible, notwithstanding the range of remedial measures available, and continuing the prosecution would amount to an abuse of process.  The burden is on the defendant to show on a balance of probabilities that no fair trial can be held.

(2)  In a rare case where, even though a fair trial is available, the court is prepared to grant a permanent stay because there has been an abuse of power of a kind that renders the trial of the accused an affront to the court’s sense of justice and propriety.

The prosecution’s duty of disclosure

9.The prosecution’s duty of disclosure is “based on the defendant’s common law right to a fair trial and on the principle of openness”: HKSAR v Lee Ming Tee (No 2) (2003) 6 HKCFAR 336 at §143 per Sir Anthony Mason NPJ.  This case decided whether a permanent stay of proceedings should be granted where there was a breach of the duty of disclosure.  In deciding whether to set aside the permanent stay, the Court of Final Appeal considered the scope and nature of the prosecution’s disclosure, and whether the finding that there was a breach of the duty was unsustainable. Given that certain information did not have to be disclosed and that the finding could not be sustained, the Court held that there was no basis for the grant of the permanent stay.  In the judgment of Sir Anthony Mason NPJ (with whom the other judges agreed) he said at §182:

“In the light of the conclusions already reached, there is no basis for the grant of a permanent stay. It was not a case in which the respondent could not get a fair trial. Therefore if the case was to attract a stay, it had to come within the principle stated by Lord Steyn in R v Latif [1996] 1 WLR 104 at p 112G-H:

‘In this case the issue is whether, despite the fact that a fair trial was possible, the judge ought to have stayed the criminal proceedings on broader considerations of the integrity of the criminal justice system. The law is settled. Weighing countervailing considerations of policy and justice, it is for the judge in the exercise of his discretion to decide whether there has been an abuse of process, which amounts to an affront to the public conscience, and requires the criminal proceedings to be stayed: R v Horseferry Road Magistrates’ Court, ex p Bennett [1994] 1 AC 42’.

It is generally recognised that only in exceptional circumstances will a stay be granted when a fair trial is possible. An indication of what this means is conveyed by L’Hereux-Dubé J’s observations in R v O’Connor (1996) 130 DLR (4th) 235 at p 277B-C:

‘…a stay of proceedings is only appropriate “in the clearest of cases”, where the prejudice of the accused’s right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued’.”

10.In a case that is a leading authority on common law principles governing disclosure, R v Ward (Judith) [1993] 96 CR App R 1 (CA), Glidewell LJ stated at 25:

“…We would emphasise that ‘all relevant evidence of help to the accused’ is not limited to evidence which will obviously advance the accused’s case. It is of help to the accused to have the opportunity of considering all the material evidence which the prosecution has gathered.”

11.Glidewell LJ went on at 50 to discuss the legal rules governing disclosure.  Even though he was addressing the failure by the prosecution to disclose scientific evidence, his statements of principle have broad application.  He said that an incident of a defendant’s right to a fair trial is a right to timely disclosure by the prosecution of all material matters which affect the case relied on by the prosecution, that is, whether such matters strengthen or weaken the prosecution case or assist the defence case.  He further stated that the duty exists whether or not a specific request for disclosure is made by the defence and that the duty is continuous.  He emphasised at 52 that the duty extends to anything which may arguably assist the defence and that it is a positive duty that obliges the prosecution to make formal and proper enquiries in order to ascertain whether there is discoverable material. 

12.Glidewell LJ put the issue of disclosure in its practical perspective but at the same time stressed the importance of ensuring that there is no miscarriage of justice.  He said at 52:

“The law is of necessity concerned with practical affairs, and it cannot effectively guard against all the failings of those who play a part in the criminal justice system. But that sombre realism does not relieve us, as judges, from persevering in the task to ensure that the law, practice and methods of trial should be developed so as to reduce the risk of conviction of the innocent to an absolute minimum. At the same time we are very much alive to the fact that, although the avoidance of the conviction of the innocent must unquestionably be the primary consideration, the public interest would not be served by a multiplicity of rules which merely impede effective law enforcement.”

13.Briefly stated, the prosecution’s duty of disclosure requires it to make full and timely disclosure to the defence of all relevant or possibly relevant material available or known to it whether it is here or aboard.  In general terms, it is material that may in some way advance the defence case or weaken the prosecution case.  The prosecution is therefore obliged to take all reasonable steps to identify and obtain such material. 

Disclosure of material located outside the jurisdiction

14.In HKSAR v Sze Mei Mun & Ors [2014] 5 HKC 513, the Court of Appeal had occasion to examine in detail, by reference to recent authorities, the prosecution’s duty of disclosure in relation to material located outside the jurisdiction.  Lunn JA (giving the judgment of the court) reaffirmed the nature and scope of the prosecution’s duty of disclosure as stated by Sir Anthony Mason NPJ in Lee Ming Tee (No2) and then went on to consider and apply R v Flook [2009] EWCA Crim 682 where the Court of Appeal of England and Wales addressed the duty of disclosure in respect of material located outside the jurisdiction.

15.Lunn JA by reference to the relevant case law highlighted the nature and scope of the prosecution’s duty of disclosure as follows.  First and foremost, the duty is based on the defendant’s common law right to a fair trial and on the principle of openness.  The failure to properly disclose to the defence relevant material can result in material irregularity and an unsafe conviction.  The duty of the prosecution is to disclose to the defence relevant material, including information, which may undermine its case or advance the defence case.  The material or information does not have to be admissible and may be relevant and useful in various respects in the conduct of the defence case or may lead by a train of inquiry to relevant evidence.  The scope of the duty is not limited to relevant material in the possession or control of the investigatory agency concerned but extends to such material in the possession or control of any other government department or agency if there are particular circumstances suggesting that it may have such material.

16.Lunn JA went on to consider the nature and ambit of the duty in the context of material outside the jurisdiction.  In his analysis, he observed that there was an absence of legislation or guidelines in Hong Kong to address the disclosure of material located outside the jurisdiction. He considered and adopted the principles stated in Flook.  He stated that the obligations identified in Flook in respect of such material apply in like manner to the prosecution in Hong Kong, namely that in such circumstances the prosecution’s duty is to “pursue reasonable lines of enquiry” to identify the material and “to take reasonable steps to obtain it”.

17.Flowing from this obligation two issues arise. First, the prosecution can only do so much when fulfilling its duty of disclosure by seeking to obtain material outside the jurisdiction. This was answered by Thomas LJ in the following passage of his judgment in Flook which was quoted by Lunn JA:

“However, it is self evident that where there may be material relevant in that sense overseas outside the European Union, the power of the Crown and the courts of England and Wales to obtain material is limited. Essentially, if informal requests for the material are declined, the powers are limited to what is set out in the Crime (International Co-operation) Act 2003 and in relevant international conventions, such as the Drugs Convention. There may be cases where a foreign entity will simply not make the material available, a foreign court will not compel production under a Letter of Request and steps under the relevant convention will not produce the documents. There may be other cases where the authorities of a foreign state, though willing to show material to officers acting on behalf of the United Kingdom, will not allow the material to be copied or otherwise made available and the courts of the foreign state will not order its provision.

There cannot, for these reasons, be any absolute obligation on the Crown to disclose relevant material held overseas outside the European Union by entities not subject to the jurisdiction of these courts; the position is quite different to the position where the information is held in the United Kingdom or by a person amendable to the jurisdiction of these courts. As Sir Igor Judge said in R v Khyam [2008] EWCA Crim 162 at para 37:

‘The prosecuting authorities in this jurisdiction simply cannot compel authorities in a foreign country to acknowledge, let alone comply with, our disclosure principles.’

The obligation is one to take reasonable steps.  Whether the Crown has complied with that obligation is for the courts to judge in each case on the provision of full information to the court.”

18.Secondly, what remedies are available to the defence if there is a serious dereliction or breach of duty by the prosecution in not pursuing reasonable lines of inquiry to identify material or taking reasonable steps to obtain such material on a timely basis or at all.  Relevant considerations may include the nature and existence of such material in clear and obvious circumstances and whether such material would be of assistance to the defence.  

19.I raise these issues now because they will need to be appropriately addressed if they are still outstanding at the adjourned hearing when the application for permanent stay will be further considered as well as any other related action or relief depending on the circumstances of the case at that time.

The controversy over disclosure

20.The defendant was arrested in Hong Kong on 12 November 2014 for the offence of trafficking in a dangerous drug.  His case is one of two that are remaining out of ten drug trafficking cases that all seem to have arisen from an international joint operation, known as “Operation Breaking Cocoon”.  The principal law enforcement agencies involved in the defendant’s case are the Australian Federal Police and Hong Kong Customs and Excise Department. 

21.The other eight cases have resulted in the prosecution offering no evidence and the acquittal of the defendants for the offence of drug trafficking.  The cases have a common theme where it is alleged that persons were targeted by members of a drug syndicate who were cajoled and tricked into coming to Hong Kong and leaving with luggage given to them, containing a quantity of drugs.  In the present case, the defence claims that the defendant was such a targeted person who was tricked into taking luggage containing drugs from Hong Kong to Australia. 

22.Upon the arrest of various persons in relation to the operation, a number of public statements from representatives of the relevant law enforcement agencies both here and aboard were made about how the drug syndicates involved would target and groom certain persons to become drug couriers. 

23.The defence teams representing the various defendants sought pursuant to the prosecution’s duty of disclosure the material and information that gave rise to these public statements both for the purpose of ensuring that the prosecution accessed and considered such material and information in addressing the criminality of their clients and that relevant material and information was fully and properly disclosed to the defence for any future trial. 

24.A request for disclosure by the defendant about the public statements was made to the prosecution on 11 February 2015.  There followed a series of requests to the prosecution for full and frank disclosure of any relevant material or information.

25.However, the issue of disclosure has been a matter of continuing controversy between the parties.  The prosecution’s position has been that all unused material in its possession has been disclosed to which the defence have taken issue as they claim that the public statements must have been based on certain material or information.  From the defence’s perspective, such material or information is important because it may go to show that the defendants unwittingly got involved in a scam perpetrated by the drug traffickers to which they have fallen victim.

26.The unsatisfactory progress of the disclosure became the subject of submissions in proceedings in this and related cases, which were dealt with together.  It eventually resulted in decision of this Court dated 24 September 2015 where the prosecution were reminded of its duty of disclosure and put on notice to take all reasonable steps to identify and obtain any relevant material or information.  There were five cases before the Court, including the defendant’s case, and each of the defendants was granted bail with conditions. 

27.Later in January 2016, in another related case, I gave a ruling on disclosure, where I examined five files in the possession of the prosecution to determine whether they contained any unused material that were disclosable.  I concluded that the files mainly consisted of recording and dissemination of information and intelligence between relevant law enforcement agencies and communications in addressing the issue of disclosure.  I further concluded that the material and information contained in the files was either not relevant to the case or known to the defence.  See HKSAR v UN Mark William, HCCC 10/2015, 21 January 2016, unreported.

The issue of disclosure in the defendant’s case

28.The situation in the present case has an additional feature from the other cases.  It is said that the defendant before he departed from Australia to come to Hong Kong was approached by an Australian Federal Police officer and it would appear others as well about his trip abroad.  He was warned that he could be the victim of a scam and that he should be careful about accepting luggage or other goods from any other person. 

29.It is what was said to him by the persons in authority that the issue of disclosure by the prosecution has embroiled itself into further controversy in the present case.  It seems that the Australian authorities may have material or information which constitutes unused material which has not been disclosed.  The legal representatives for the defendant in the present case made application in Australia under the Freedom of Information Act, 1982, and sought and obtained material and information that would indicate that the Australian authorities were aware, and in all likelihood have information, that the drug syndicate involved were targeting the defendant. 

30.The defence point out that from the records that they have obtained it seems that other persons in authority spoke to the defendant before he left Australia about him possibly being a victim of a scam and revealing to him that he had been talking to a lawyer in England about an entitlement to an inheritance from a Scottish relative.  The defendant’s case is that even though he had been warned by the authorities in Australia he believed he was not the victim of a scam and had a genuine claim to an inheritance that had to be formalised by coming to Hong Kong.  He said as much when he was arrested and interviewed by Customs officers.  The argument on behalf of the defendant is that the authorities in Australia may have additional material or information that would support his case.

31.In oral submission, Mr James McGowan, for the prosecution, indicated that in light of the new material obtained by the defence under the Freedom of Information legislation in Australia and inquiries that he had made with the relevant authorities both here and abroad, the prosecution needed more time to resolve the issue of disclosure, particularly because of a potential claim for public interest immunity in relation to any material or information emanating from Australia. 

32.I should point out that the first time that the subject of public interest immunity might need to be addressed in relation to the unused material was when it was mentioned in the prosecution’s written submission filed the night before the hearing on 23 July 2015.  This seemed to have come about because of the defence’s discovery of additional relevant material under the Freedom of Information legislation in Australia.

The adjournment of the proceedings

33.Significantly, Mr McGowan indicated a preparedness to admit certain facts that the defence wished to establish in light of the material that had surfaced from Australia for the purpose of the defendant’s trial.  The exact nature and terms of such facts were not articulated.  However, the defence were not prepared to let the matter lie on that basis and requested that the prosecution fulfil its duty of disclosure. 

34.This indication by the prosecution did go to the issue as to whether the defendant would suffer any prejudice in relation to the issue of disclosure.  The preparedness of the prosecution to admit a fact that the defence sought to prove as part of its case which it claimed was supported by the unused material is a factor that would go to the issue as to whether or not the defendant would receive a fair trial because of an alleged failure to disclose relevant material.  This no doubt had an influence on the defence during the course of oral submissions.

35.Nevertheless, Mr McGowan sought an adjournment of the case to further address the issue of disclosure and requested that the trial dates be vacated.  He mentioned that the prosecution had made an application through the Mutual Assistance Ordinance, Cap 525, to obtain I assume material that has now been acknowledged to exist.  I must say that this came as a surprise because it is being done so late in the proceedings and no explanation has been given as to why.  He did state that hitherto communications with the Australian authorities had been on an informal basis. 

36.Mr Gerard McCoy, SC, who appears on behalf of the defendant together with Mr Michael Arthur and Dr Nisha Mohamed, acknowledged that justification for a stay of the criminal proceedings would not be made out on the materials at this stage of the proceedings.  However, he strongly submitted that the issue of disclosure had reached an unsatisfactory situation where there was a serious issue as to whether full and frank disclosure had been made by the prosecution which was still outstanding and that past history had indicated it may remain that way given the glacially slow progress that had been made on the issue.

37.He noted that the continuing controversy surrounding disclosure had yet again resulted in trial dates having to be vacated and the case adjourned.  He suggested that the case should be adjourned by one of two methods. 

Adjourning the proceedings

38.The first method was to adjourn the case and lift the travel restriction on the defendant’s terms for bail. 

39.Mr McCoy argued that the defendant has been either detained or released on bail with conditions to remain in Hong Kong since his arrest on 12 November 2014 and in similar circumstances the travel restriction was lifted in the other remaining case of HKSAR v Walsh, HCCC 368/2015. 

Leaving the count on the court file

40.The second method was a form of an adjournment in that the count on the indictment would be ordered to lie on the court file, marked not to be proceeded with without leave of the court. 

41.Mr McCoy referred me to the Court of Appeal decision of Northern Ireland in R v AH [2008] NICA 44, where Kerr LCJ (now Lord Kerr SCJ) gave the judgment of the court.  This was an unusual case where the father of a young girl had been convicted of having raped and sexually assaulted her on a number of occasions.  The father appealed his convictions which was dismissed. 

42.There were several occasions prior to and after the trial that the complainant either sought not to give evidence or to retract the evidence that she had given.  It seems that this all arose because she had nowhere to stay except with her father or paternal grandmother.  It was prior to the trial of her father that she said that she wanted to withdraw the complaint because she only had her father and she wanted him to return to her.

43.The prosecution applied for adjournment so that the complainant could be interviewed by a psychologist or psychiatrist.  The trial judge refused the application because there was no evidence that she would agree to be interviewed.  Soon thereafter the prosecution made a different application.  They asked for a stay of proceedings, with the bill of indictment to remain on the books, not to be proceeded with without leave of the court.  The defence opposed the application.  The trial judge however acceded to the prosecution’s request. 

44.Later the complainant stated that she wanted the prosecution of her father to continue and an application was made before a new trial judge for leave to proceed with the case which was granted. 

45.The issue for determination on appeal was whether the order by the first trial judge that the charges should lie on the court file was contrary to established practice and whether the consent of the appellant was required before such an order could be made in accordance with the appellant’s right to a fair trial within a reasonable time under Article 6 of the European Convention on Human Rights.  

46.Kerr LCJ explained at §26 that an order that a charge should remain on the books “is to all intents and purposes an adjournment, albeit with the further safeguard that it may not proceed again without leave, the same considerations as should be taken into account in deciding whether to adjourn will apply.  By the same token, a judge should be at liberty to consider whether to make such an order in equivalent circumstances to those which arise where an adjournment of the proceedings is sought.” 

47.It was accepted that in both instances such an order should not be made if it would violate a defendant’s right to a fair trial but in that case it had not been argued that the order by the first trial judge or the direction by the second trial judge interfered with or breached the appellant’s right to a fair trial. 

48.So the issue on appeal turned on whether the order that the charges remain on the books should not be made unless the appellant consented to it.  The court concluded that in the absence of any suggested disadvantage, they could not accept that a judge would not have the power to make an order sought solely because the appellant objected to it. They were satisfied that the first trial judge was right to agree to the prosecution’s request.  Reference was made to the relevant editions of Archbold, Criminal Pleading Evidence and Practice, 2006, and Blackstone’s Criminal Practice, 2006, but I will not set out the quoted passages because they were commentary in relation to R v Central Criminal Court, Ex parte Raymond (1986) 83 Cr App R 94 and how the issue of the defendant’s consent was addressed in that case. 

49.Kerr LCJ in any event explained the position of the court at §28:

“It appears to us that the fact that a defendant is ready and wishes to proceed with his trial should weigh heavily with a judge who is asked to accede to an application that charges should be allowed to remain on the books. If, by adopting that course, the court condemns a defendant to an open-ended period of uncertainty as to when, if ever, he may be required to stand trial, obviously article 6 considerations will be immediately relevant. Likewise, a judge who is asked to authorise the reactivation of a trial that has been deferred in this way must closely examine whether to allow the trial to proceed would bring about unfairness to the accused.”

50.As is evident from the above analysis, the circumstances of this case were rather unusual which brought about the first trial judge’s order that the charges should lie on the court file.  On appeal, the court was concerned with whether, in the circumstances of the case, the order was correct in the absence of the appellant’s consent.  It seems therefore that this case was decided on a very narrow issue in relation to its own particular facts and circumstances.

51.The practice of leaving a charge or charges on the court file, marked not to be proceeded with without leave of the court or of the Court of Appeal, is a common one and normally arises when there are several counts on the indictment, the defendant has pleaded guilty to some, but not all of the counts, and the prosecution do not wish to have him tried on the outstanding entire matter.  Leaving the counts on the file avoids the defendant being acquitted on the “not guilty” counts which might seem in the particular case inappropriate given the state of the evidence.  It would appear there is no objection to an entire indictment remaining on the court file but that would only arise in very special circumstances. 

52.Woolf LJ (as he then was) in Central Criminal Court, Ex parte Raymond at 98, in analysing the nature of the order explained:

“It starts off by having the same effect as an order for an adjournment but an adjournment which it is accepted may never result in trial. Frequently the order is made to safeguard the position of the prosecution and the defence in case a defendant, who has been convicted, should appeal, it being the intention of the court if there is no appeal or if the appeal is unsuccessful the defendant should never stand trial. That the defendant can still stand trial is indicated by the limits on the discretion of the court (laid down by the House of Lords in Connelly v Director of Public Prosecutions [1964] AC 1254) to prevent the Crown proceeding with a prosecution if it wishes to do so. However, in the majority of cases where such an order is made, there will be no trial and there will certainly come a stage when either the prosecution would not seek a trial or if it did seek a trial, the court would regard it as so oppressive to have a trial that leave to proceed would inevitably be refused.”

53.See also Archbold Hong Kong Criminal Law Pleadings Evidence & Practice, 2016, at §§4-69 to 4-74; Archbold Criminal Pleading Evidence & Practice, 2016, at §§4-257 to 4-258; and Blackstone’s Criminal Practice, 2016, at §§D12.83 to D12.88.

Conclusion

54.I did not consider it appropriate, nor was it warranted in the circumstances of this case, that the count lie on the court file.  The most appropriate remedy in the circumstances was to adjourn the case, including the application for permanent stay, in order for the prosecution to address the issues that have arisen in relation to disclosure. It needs to be acknowledged that dealing with a foreign jurisdiction may have practical and legal difficulties for the authorities here in addressing issues of disclosure of material located there.  This was discussed in some detail in the decision of Flook.  However, as stated by Lunn JA, there are obligations on the prosecution to pursue reasonable lines of inquiry to identify material outside the jurisdiction and take reasonable steps to obtain it. 

55.In the result, the case was adjourned to 16 January 2017.  At the adjourned hearing, the prosecution will need to satisfy the Court that reasonable lines of inquiry to identify such material have been made, and if such material exists but has not been obtained, what reasonable steps have been taken to obtain it.  This will have to be addressed by way of evidence. 

56.In light of the history and circumstances of the case and the period of time that the defendant remained in Hong Kong since his arrest, I lifted the travel restriction on his bail to enable him to return to Australia in the meantime.  Bail was therefore granted on the conditions that he attend the hearing of the case fixed for 10 am, 16 January 2017; that he is allowed to leave Hong Kong but to return to Australia only; and that he is to reside in Australia at the address given and any change of address to give 48 hours prior notice to the Prosecution’s Section of the Customs and Excise Department. 

Mr James McGowan, counsel on fiat, on 23 July, 8 and 11 August 2016, Mr Peter Power, SADPP on 12 August 2016, for HKSAR

Mr Gerard McCoy, SC, Mr Michael Arthur and Dr Nisha Mohamed, on 23 July, 8 and 11 August 2016, Mr Michael Arthur on 12 August 2016, instructed by Robinsons, assigned by Director of Legal Aid, for the defendant