HKSAR v. Adjei Robert (also known as Adjei King)

HCCC 2/2019

[2021] HKCFI 266

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 2 OF 2019

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REASONS FOR DECISION

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The application

1.This is an application by the defence for a Permanent Stay of these Proceedings on the grounds that in all the circumstances of this case a fair trial is not possible.

2.After hearing submission on 29 January 2021, I ruled against the defendant, in that the defendant failed to show, on a balance of probabilities, that a fair trial is not possible.  I said at the time that I would give my reasons.  This I now do.

Background

3.The defendant faced three counts in an indictment which alleged that he, together with another defendant in the name of Balakrishnan Mahendran (“BM”) and other persons unknown:

(1).  Forcibly taking away a person named Munatsi Kingsley also known as Kingston Fernadez (“Kingsley”) with intent to procure a ransom for the liberation of Kingsley (1^st count);

(2).  Kidnapping Kingsley, an alternative 2^nd count to the 1^st count; and

(3).  Forcible detention of a person named Babauskis Inars (“Inars”) with intent to procure a ransom for liberation of Inars (3^rd count).

4.There is no need to go into details of the prosecution case. Suffice it to say that after the alleged offences which took place on 26 September 2017, Kingsley was not available to give evidence, and the main witness for the prosecution was Inars, who is a Latvian living overseas and was visiting Hong Kong at the time of the incident in September 2017.

5.I will first set out a chronology of this case:

(1).  There were originally two cases involving the two defendants as they were arrested at different times.  The indictment against BM was filed on 28 November 2018 whilst the indictment against the defendant was filed on 14 January 2019.  The two cases were consolidated on 30 January 2019, with Case Management Hearing (CMH) set down on 10 April 2019 and trial to run from 22 August – 6 September 2019;

(2).  On 10 April 2019 CMH was held.  BM, who was on bail, was allowed to have bail extended.  The defendant was remanded in custody.  A further CMH was ordered to take place on 28 May 2019;

(3).  By a letter dated 14 May 2019, the CMH was vacated (due to the fact that I was detained overseas for a personal matter);

(4).  By another letter dated 11 June 2019, a further CMH was arranged to take place on 2 July 2019;

(5).  On 2 July 2019, both defendants were present.  Trial was ordered to take place as scheduled, with two extra days to be added.  BM’s bail was extended and the defendant was again remanded in custody;

(6).  On 21 August 2019 the prosecution wrote to this Court, informing this Court that Inars did not board the flight to Hong Kong as scheduled;

(7).  On 22 August 2019, which was the first day of the trial scheduled, Inars failed to turn up.  The case was adjourned to 4 October 2019 for Mention pending police enquiry on why Inars failed to appear.  BM’s bail was again extended.  The defendant was granted bail on this occasion;

(8).  On 4 October 2019, BM failed to appear.  Warrant of Arrest was issued against BM with bail money estreated.  Counsel for BM was discharged.  On that occasion the prosecution informed this Court that Inars failed to turn up due to the unstable social condition in Hong Kong.  This Court directed the prosecution to ascertain the length of the trial and whether to proceed against the defendant on his own.  The trial dates were vacated and the case was sent to the Listing Judge for re-listing;

(9).  On 21 November 2019, parties were informed another CMH would take place on 9 March 2020, with new trial dates fixed from 11 June 2020 to 24 June 2020;

(10).  Due to the General Adjournment Period (GAP) imposed by the Judiciary as a result of the Covid-19 pandemic, the case was re-scheduled as follows: CMH scheduled on 9 March 2020 was relisted to 27 March 2020, then was again relisted to 16 April 2020;

(11).  On 16 April 2020, CMH was held. BM was still at large.  The prosecution informed this Court that Inars, who was willing to testify, was in India and as a result of the “lockdown” there he could not come to Hong Kong.  Due to the uncertainty, the trial dates were vacated.  The prosecution informed this Court that the trial against the defendant would proceed in any event.  Trial was to be re-fixed and the defendant’s bail was extended;

(12).  On 8 May 2020, the case was fixed for Mention on 14 December 2020 with trial dates fixed to take place on 15, 18-22, 25-28 January 2021;

(13).  On 14 December 2020, BM was still at large.  The prosecution informed this Court that they will apply for the trial to take place against both defendants, in BM’s absence.  This Court fixed a hearing for submissions on 7 January 2021;

(14).  On 7 January 2021, after hearing submissions, I refused the prosecution’s application to have the trial against BM in absentia together with the defendant on the grounds that it would be unfair to the defendant to do so.  I then indicated that a trial of BM on his own in his absence would be allowed. (A separate judgment will be handed down in relation to that application in due course);

(15).  On 15 January 2021, the first day of trial against the defendant, Inars was already in Hong Kong and ready to give evidence.  The trial against the defendant could not take place due to the sudden unavailability of the Ewe/English interpreter the Judiciary has engaged to translate for the defendant.  The Court was informed that that particular interpreter was the only Ewe/English interpreter available for the job at the time; and that, due to the Covid-19 situation and the resultant “lockdown” in many countries, it would have been difficult to locate another Ewe interpreter in the near future;

(16).  Faced with such a situation, I then decided to conduct the trial of BM in absentia, while Inars was in Hong Kong, to start on Monday 18 January 2021;

(17).  In the afternoon of 15 January 2021, this Court was informed that an alternative Ewe interpreter, who had assisted the Judiciary before, was located and the new interpreter was willing to act as an interpreter in this case;

(18).  On Monday 18 January 2021, it was discovered that the Ewe dialect spoken by the new interpreter was not the same as the one spoken by the defendant.  Faced with such a situation, this Court had no alternative but to proceed with the trial of BM in absentia, starting from Tuesday 19 January 2021;

(19).  The prosecution asked for a further adjournment of the trial of the defendant, while the defence indicated that they would make an application to stay the proceedings.  This Court then fixed a date for the hearing of the application. On the same day (ie 18 January 2021) the defendant filed a Motion to permanent stay the proceedings against him.

Grounds of the application for Stay

6.Mr John McNamara, counsel for the defendant, gave this Court information about the background of the defendant in his written submission.  

7.Mr McNamara submitted that the defendant, who lived and grew up in a village in the Volta region in Ghana, came to Hong Kong in 2003 and sought political asylum as a torture claimant.  The defendant was married to a Chinese in Hong Kong in 2017.  The defendant’s first language is Ewe and he can understand a little of the Twi language.  He can speak Cantonese with moderate proficiency but cannot read and write Chinese.  He can communicate in simple English only but his ability to read and write English is limited.

8.Mr McNamara submitted that to be able to properly apprehend the trial proceedings the defendant would require the assistance of an Ewe interpreter who speaks the same dialect as the defendant.

9.In short, Mr McNamara’s submission was that without the service of an appropriate Ewe interpreter the defendant cannot receive a fair trial.

10.Mr McNamara also asked this Court to consider the application in the context of the history of this case, pointing out that the defendant attended court on 11 occasions since 10 April 2019 and none of the adjournments were due to any act or omission by the defendant.

11.Mr McNamara also submitted that should the case be adjourned (as requested by the prosecution) instead of being stayed, with the past history of difficulties in getting Inars to come to Hong Kong to give evidence, there is a high probability that Inars would not be willing or be able to be in Hong Kong for the trial.

Stance of the Prosecution

12.The prosecution’s stance, in short, was that they were ready to proceed with the trial of the defendant as scheduled since Inars had already arrived in Hong Kong to give evidence.  It was due to the unexpected unavailability of Ewe interpreter that the trial could not proceed.  While it is difficult for the Judiciary to find a suitable interpreter for the defendant in the near future due to the global Covid-19 situation, that does not mean that given time, such an interpreter cannot be found.

13.Mr Ken Ng, counsel on fiat for the prosecution, informed this Court that Inars is willing to come to Hong Kong again to testify, adding that Inars’ recent visit to Hong Kong to give evidence against BM demonstrated that Inars is someone who would keep his promise.

14.Mr Ng also submitted that the defendant is on bail and is only required to report to the police station once every fortnight, which is a rather loose condition.  

15.Mr Ng submitted that the solution is to expedite the process in the search of a suitable interpreter for the defendant instead of staying the proceedings.

The law

16.There is no dispute about the applicable law.  Both parties relied on the relevant section for Stay of Proceedings in Hong Kong Archbold 2021, para. 4-49 to 4-51. I will just set out those passages relevant to this hearing:

(a)  “In general, if a charge is properly brought before a court of competent jurisdiction that court is obliged to try the case: HKSAR v Lee Ming-tee [2001] 1 HKLRD 598… However, the courts have a residual discretion to make orders including an order staying proceedings brought before it to protect itself from an abuse of the court’s process: [Lee Ming-tee], Connelly v DPP [1964] AC1254, R v Humphrey [1977] AC 1; Warren v Attorney-General for Jersey [2012] 1 AC 22” (para. 4-49)

(b)  “…In exercise of its inherent power to prevent an abuse of its own process, the court has jurisdiction to stay criminal proceedings in two circumstances, (1) Where, notwithstanding the remedial measures which are available to a court to ensure a fair trial, the circumstances are such that ‘a fair trial for the accused is found to be impossible and continuing the prosecution would amount to an abuse of the process’ (emphasis added). That is because “the continuation of processes which will culminate in an unfair trial can be seen as a ‘misuse of the court process’ which will constitute an abuse of process because the public interest in holding the trial does not warrant the holding of an unfair trial.” The burden is on the accused to show on the balance of probabilities that no fair trial can be held…” (para. 4-50)

(c)  “The power is designed to protect [the court’s] own process from abuse…” (para. 4-51 (1))

(d)  “The ultimate objective of this discretionary power is to ensure that there should be a fair trial according to law, which involves fairness both to the accused and the prosecution (R v Derby Crown Court (1984) 80 Cr App R 164)” (para. 4-51 (5))

(e)  “The means to ensure fairness of trial in any ordinary case is by the court exercising its power to control rather than to stay the proceedings...” (para. 4-51 (6))

(f)“The court has a wide discretion as to how it goes about determining whether or not to stay the proceedings...” (para. 4-51(7))

(g)  “The remedy to stay of proceedings should be sparingly exercised. … It is … a power that should only be exercised in the most exceptional circumstances. (DPP v Humphreys [1977] AC 1, 26)” (para. 4-51(8))

(h)  “The categories of abuse are never closed: R v Li Wing-tat [1991] 1 HKLR 731, [of two major streams of stay cases]. The first is that stay was granted on the basis that requirement of a fair trial had become impossible making the continuation of the prosecution case an abuse of process… (HKSAR v Lee Ming Tee [2001] HKLRD 598)” (para. 4-51 (8))

(i)  “A decision to stay or refuse to stay proceedings on the basis that they constitute an abuse of process is a decision that can only be upon findings of fact: HKSAR v Wang Hung Ki [2010] 4 HKC 118, para 65” (para. 4-51 (11))

My consideration of the submissions

17.There is no doubt that the prosecution was ready to proceed with the trial of the defendant as scheduled on 15 January 2021 - the overseas witness Inars having arrived in Hong Kong by then.  It was due to the unexpected unavailability of the Ewe interpreter that the trial against the defendant could not proceed.  

18.To ensure the defendant has a fair trial, it is important that the defendant has the service of an Ewe interpreter who speaks his dialect, even though the defendant understands some English and has become proficient in Cantonese after living here for many years and having married a local Chinese.  

19.While it is not possible to secure the service of an appropriate interpreter at the time of the trial or in the near future, it cannot be said to be the case that such an interpreter cannot be found, given time.

20.The offences faced by the defendant are serious.  Though there had been some difficulties in getting Inars to come to Hong Kong to testify in the past, Inars did come despite the challenges posed by the Covid-19 pandemic. Inars in fact did give evidence in the trial of BM, which started on 19 January 2021.  I was informed that Inars has indicated he is willing to come to Hong Kong again to testify in the trial of the defendant.

21.Although the incident happened in 2017, this is not a case that would rely purely on memories of witnesses as there are various CCTV footages which captured the event.  The prosecution also relies on photographs retrieved from the mobile phone of BM, a person alleged to have acted in concert with the defendant to commit the offences.

22.Further, the defendant has been granted bail and he is only required to report once a fortnight.

23.Having considered all the circumstances, I did not find this to be a case in which “a fair trial for the defendant had become impossible” so as to require me to exercise my discretion to stay the proceedings.  

24.I was of the view that a further adjournment should be granted to allow time to obtain the service of an Ewe interpreter.  I urged parties to assist the Judiciary to locate such an interpreter so that the trial can proceed on the next occasion.

Conclusion

25.For these reasons, I refused the defence application to stay the proceedings against the defendant.  The case was to be re-fixed.

Mr Ken Ng Kin-man, Counsel-on-fiat of the Department of Justice, for the Prosecution

Mr John Patrick McNamara, Counsel instructed by Messrs Morley Chow Seto, assigned by D.L.A., for the Defendant.