HKSAR v. Chen Keen (Alias Jack Chen) and Others

HCCC 309/2019

[2021] HKCFI 3567

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 309 OF 2019

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Before: Deputy High Court Judge Bruce SC in Court

Date of Hearing: 25 June 2021

Date of Ruling: 30 November 2021

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RULING

APPLICATION FOR STAY OF PROCEEDINGS

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INTRODUCTION

1.On 16 June 2021, I discharged the jury hearing the trial of these proceedings.  By notice dated 19 June 2021 those representing the accused then made submissions that the prosecution should not be permitted to pursue a further trial before a fresh jury.  In the circumstances following the discharge of a jury, the prosecution is, ordinarily, entitled to require the charges on the indictment to be tried by a fresh jury unless the proceedings are not permitted by the Court to proceed.

2.The grounds upon which those representing the accused contend that the prosecution are as follows:

(1)  The further trial of the accused would, in the particular circumstances of the case be vexatious, unjust, oppressive and contrary to the interests of justice.[1]

(2)  The test that the Court should determine is not that which is applicable to the determination of whether or not to permanently stay proceedings on the grounds of an abuse of process but are based on the same test that an appellate court applies in determining whether to grant a retrial.[2]

(3)  (Alternative to Ground (2)) the proceedings should be permanently stayed as an abuse of the process of the Court on the basis that either (a) a fair trial is not possible at any further trial of this indictment and/or (b) it would be an affront to the Court’s sense of justice to try the accused for a further time.[3]

CASE FOR THE ACCUSED

Summary of Grounds

3.The outline of the case for the accused is contained within the Joint Defence Notice of Application for Permanent Stay of Proceedings dated 19 June 2021.  The bases for the application are:[4]

(a)  The defendants have been subjected to two lengthy trial procedures over the past decade, both of which failed for reasons beyond their control.

(b)  They have already served lengthy periods of imprisonment and endured years of misery, anxiety, vast expense in legal costs and restrictions on their liberty which have effectively destroyed their ability to lead fulfilling lives both personally and professionally.

(c)  D3 has served all but eight months of his entire sentence.

(d)  D2 and D3, who are not Hong Kong citizens and who have no legal rights in this Special Administrative Region, have existed in a form of legal limbo for eleven years.  They are only permitted to remain here because their bail conditions prevent them from leaving.  They have not been able to see members of their families (such as D2’s daughter) or to exercise basic human rights such as to access state medical services, for a very long time.  D2 has been unable to work because of the injunction taken out against her, itself dependent on the criminal prosecution, and has been forced to exist dependent on the charity of others.

(e)  The experience of conducting the re-trial has exposed numerous fatal flaws in the prosecution’s indicted case and any decision on permitting the prosecution to pursue a further trial before a fresh jury must take account of those fatal flaws.

(f)  It would be grotesque to fix any further trial process without regard to the diaries of Counsel who have acted for the defendants in the re-trial and for many years and accordingly no further trial could fairly be fixed before October 2022 which would mean that witnesses would be expected to recall events which took place some 13 years ago.

(g)  Even if it were possible to re-commence a fresh trial next week, the delay and the manner in which witnesses were originally proofed in 2010/11 (without reference to the contemporaneous documentation which contradicts their recollected evidence) makes a fair trial impossible.

(h)  The way in which the prosecution have sought to re-cast their case in the course of the re-trial in order to address the fatal flaws in the indicted case is unprincipled, unlawful, grossly prejudicial and was the key factor in causing the discharge of the jury.  It is an abuse of process for a prosecution repeatedly to shift its case as the wrongness of the allegation it makes is exposed.

4.There was a further ground asserted in the Notice which is as follows:

(i)  The in terrorem threat by Prosecuting Counsel to seek to call Mr Wu Wing Kit at any further re-trial is a blatantly transparent attempt to place pressure on Deputy High Court Judge Bruce SC to withdraw from acting as trial judge and is in itself an abuse of the process of the court in circumstances where the prosecution are self-evidently infuriated by rulings made in the re-trial and are determined to remove a Judge they regard as an inconvenient obstacle to the advancement of their flawed indictment.

While I consider this topic to be a matter which I am obliged to deal with, I do not consider that this is a basis upon which a Court could refuse permission to proceed.  In my opinion, this is the position whether one considers this contention either by itself or in combination with the grounds upon which the Notice is truly based.

Grounds (a) to (d): Double jeopardy and hardship

General

5.Grounds (a) to (d) of the submissions of the accused were grouped together.  Central to this group of Grounds is a chronology of events.  A chronology was provided.[5]  There is also a chronology provided by the prosecution which is broadly similar to that provided by the defence.  However, while it is true that the prosecution chronology broadly accords with that of the chronology provided by the defence, further dates are provided and rather than setting out both chronologies I propose to create a chronology which takes account of the approach of both sides.  That chronology is set out under the heading “Determination”.  It is expressed in neutral language.

6.The essence of the position of the accused under these headings is: “All these matters have to be seen in the context that the defendants endured a lengthy and complex trial process in 2015/16, appeals and imprisonment for charges that have ultimately been found to be defective as a result of prosecutorial error.  Throughout this time the Defendants were unable to make a living as free citizens whether for themselves or their family due to the restraint order and later the civil injunction.”[6]

7.The accused focused their submissions under this heading by reference to the considerations to the treatment in Ting James Henry v HKSAR (2007) 10 HKCFAR 632.[7]  In this regard, the accused submit:

(1)  By comparison to Ting’s case in order for the continuation of the present trial would amount to a second retrial whereas Ting on appeal to the Court of Final Appeal was potentially liable only for a first retrial;

(2)  The time served by the accused until bail pending appeal was granted by the Court of Final Appeal was twice as long as the time served by Ting;

(3)  The length of any further trial of the accused would be substantially greater than the trial which might have been faced by Ting because the case against the accused is somewhat more complex.  In this regard Ting’s case lasted 38 days and the first trial of these accused of 107 days.  It is also contended that the complexity is evidenced by the number of leading Counsel involved in the present case;

(4)  A retrial would be an expensive exercise and any costs recovered would be diminished by taxation.

(5)  The time which has elapsed between the offences, the subject of the indictment, is substantially longer than in Ting’s case (about 8 years). The offences in the present case are alleged to have occurred in 2009 and at the date of writing we are well over 12 years from that time.

(6)  Any further trial of the present proceedings will involve numerous witnesses being called upon to testify.  Those witnesses are mostly civilian witnesses and are, in some cases, resident outside Hong Kong.  It is submitted that some of these witnesses would be giving evidence for the fourth time.  They would be giving evidence about events which occurred about 12 years ago.

(7)  The time which has elapsed prevents the parties from properly investigating issues.  In this regard, the accused point to the fact that some documents have been destroyed and could not be located even after legal professional privilege was waived.

(8)  In Ting’s case, the group of which he was chairman collapsed.  In the present case there has been no collapse caused by the accused.  It is contended that the shareholders have not lost their monies.  It is contended that the “Very Substantial Acquisition” by the company which throughout these proceedings has been called 462 which was at the heart of the case continues albeit in a revised form.  There is also said to be the issue of the possibility of the resumption of trading in shares in 462.

(9)  The accused will not go unscathed in the event that there is not a further trial because they have already served a substantial time in prison.  It is said that the civil proceedings initiated by the liquidators of 462 against the accused are well capable of recovering any improper profits said to be made by the accused.  There is also a worldwide injunction against the assets of the accused at the instance of the liquidators.  In short, it is contended by the accused that in the event that there is no further trial could not be said that the accused (either individually or collectively) “got away with it”.

8.In addition, the submission of the accused points to individual personal hardship.  This is outlined in greater detail later in the submissions of the accused.

9.The accused in their submission summarise this aspect of the case for the accused as follows:[8]

“24. All these matters must also be considered in the context that the defendants (and their families) have already suffered great hardship in this process at considerable personal and financial expense.

25.In all the circumstances, it is submitted that it will be unjust, oppressive, disproportionate, and not in the interests of justice for a 2nd retrial to be ordered against these defendants.”

Specific consequences for the 1^st Accused

10.The 1^st Accused says that his reputation as a businessman has been seriously damaged by the allegations in this case.  It is contended that this has resulted in an inability to obtain appropriate permits from government bodies.[9]

11.The 1^st Accused has suffered in his personal, political and business career.  In submission, he points to the fact that he was hoping to be appointed as an honorary consul for Trade Commissioner in China and Macau for the Independent State of Samoa.  The political party that the 1^st Accused was in the process of developing has been disbanded and his business career in New Zealand has been set back.  So far as business is concerned the same position applies in relation to his businesses in the mainland.[10]

12.The position of the 1^st Accused is also said to be prejudiced by the civil proceedings now being taken against him (and his wife) by the liquidators of 462.  There is a worldwide Mareva injunction against them which is based on the allegations made by the prosecution in the present criminal proceedings.[11]

13.The provision of legal expenses by the 1^st Accused has been based on borrowing from friends.  It is contended that he has had to borrow to support living, family and school expenses as well.  The liabilities of the 1^st Accused have included the obligation to support the legal expenses from the trial in the District Court of his wife.[12]

14.On a personal basis the trial has not only been a strain for the 1^st Accused but also his wife and 3 children.  Perhaps, the only bright spot in this is that the 1^st Accused is now a grandfather 2 times over.  It is contended by the 1^st Accused that the strain of these proceedings has extended beyond his immediate family.  Even if there was not a causal connection between difficulties such as the illness of the father-in-law of the 1^st Accused, they are stresses and strains that 1^st Accused and his family have to bear in addition to the stress and strain of the trial.[13]

15.The imprisonment imposed upon 1^st Accused following his conviction on the first trial of these proceedings meant that he was not able to attend the funeral of his father.  It is contended that the criminal proceedings have been nothing short of devastating for the 1^st Accused and his family.[14]

Specific consequences for the 2^nd Accused

16.The 2^nd Accused points to the fact that she is now a New Zealand national, having relinquished her citizenship of the People’s Republic of China.  The bail conditions imposed on her prevent her leaving Hong Kong.  As a result, she has been compelled to live here, in effect, from 2010.  She has few family connections here and, as a result of the long separation has become a strange from family in New Zealand.[15]

17.One of the consequences of being unable to leave Hong Kong and without being the holder of a permanent identity card, she is not permitted to work without permission.  She has applied on two occasions and on both occasions was refused permission to work.  She lives on the charity of her former husband and some of her friends.[16]

18.The 2^nd Accused is unable to access government medical services and is forced to pay higher rates for private medical services.  As a result of not having a permanent identity card, it is contended that she has also denied matters such as appropriate banking facilities.[17]

19.The 2^nd Accused has also experienced personal difficulties in relation to carrying through an adoption process.  In addition, she has a 10-year-old daughter who cannot, for all practical purposes, live in Hong Kong.  That daughter lives in the mainland with relatives.  In consequence of this, the daughter has become estranged from her mother.[18]

20.It is contended by the 2^nd Accused that in consequence of the violation of her rights to a trial without undue delay is guaranteed by Article 11 of the Hong Kong Bill of Rights Ordinance, Cap 383 (and, of course, Article 87 of the Basic Law), the 2^nd Accused contends that that as a consequence of that there has been a denial her rights under Articles 8 and 14 of the Hong Kong Bill of Rights Ordinance (liberty of movement and protection of privacy, family, home, correspondence, honour and reputation, respectively).[19]

21.In connection with the business consequences for the 2^nd Accused, she contends that prior to her arrest as a result of the financial crash of 2008 her real estate business suffered and she was rendered bankrupt in December 2010.  Implicit in her submissions is that by being detained in Hong Kong in the manner of which she complains, she has been denied the opportunity to make, in effect, her comeback in financial terms.[20]

22.The 2^nd Accused also relies on the considerable amount of money she has expended on legal expenses and the need to rely on the kindness of others to support herself.  She points also to the restraint order and the civil proceedings in effect limiting her freedom - financial and otherwise.[21]

23.It is contended that the manner in which the prosecution has advanced its case against the 2^nd Accused has featured repeated errors.  It is also contended that it is inappropriate, particularly against the background of the allegation of undue delay[22], to impose proceedings on the person in the position of the 2^nd Accused.[23]

Specific consequences for the 3^rd Accused

24.The 3^rd Accused holds a Singaporean passport and was, prior to the present proceedings, a resident of New Zealand.  He has no right to remain and to work in Hong Kong and requests to the authorities for a work visa have repeatedly been turned down.  Further, because his passport is retained by the authorities as part of the terms of his bail, this also inhibits his ability to work, obtain education or obtain medical treatment in the Hong Kong public system.[24]

25.The parents of the 3^rd Accused and are in their mid-70s and both have old age-related illnesses.  The 3^rd Accused believes that the uncertainty in relation to his case has affected their well-being and has produced, in his parents, a degree of anxiety.  His detention within Hong Kong, although he is out on bail, has caused him anxiety because he is not able to contribute to the welfare of his parents.[25]

26.The 3^rd Accused say that he has suffered reputational damage as a result of this case.  This was of particular importance because he depends on relationships with banks and other financial institutions in order to advance his business as a mortgage advisor.  He believes that in any event he will be unable to return to his former business due to the reputational damage he has suffered.[26]

27.The personal circumstances of the 3^rd Accused being a person without, in effect, friends or relatives in Hong Kong as resulted in a somewhat lonely life.  He has a fiancé but she lives on the mainland.  He has had to borrow money in order to fund his legal defence from family.  In effect, his life has been on hold since his arrest in 2011.[27]

Ground (e): Fatal flaws in the case for the prosecution

28.The submissions of the accused incorporate by reference the submissions which were tendered in anticipation of a submission of no case to answer.  It is contended that the effect of these submissions is to expose serious flaws in the prosecution case and that these floors are fatal or, alternatively, are sufficiently significant to militate against a decision which would have the effect of permitting a second trial on the present indictment.[28]

Ground (h): Constant shifting of the case for the prosecution

29.The accused contend that in consequence of the exposure by the defence of flaws in the prosecution case, the prosecution has shifted its case.  It is contended by the accused that such shifts are “unprincipled, unlawful, grossly prejudicial and was a key factor causing the discharge of the jury.”  It is also contended that it is an abuse of the process to for the prosecution shift its case in the manner that it has.  It is contended[29] that it is fundamental that an accused is entitled to know the case against him so that he can properly defend himself.[30]

30.The accused advance the following particulars in support of this contention:[31]

(1)  The allegations / innuendos that various documentations relied upon by the defence were forgeries (disguised as an issue of “provenance”);

(2)  The allegation that Mr Navin Aggarwal was a co-conspirator, but now apparently he is also recategorized as a potential prosecution witness of fact;

(3)  The allegation that Mr Wu Wing Kit was/is an unindicted co-conspirator, but now apparently capable of being reformed into a potential prosecution witness of fact – this is of significance as throughout the entire case the Prosecution had repeatedly emphasised that Mr Wu was D1 and D2’s lawyer.

(4)  The Prosecution’s new suggestion that it need not prove that “Tab 11” were the “true and accurate” accounts of the Crafarms – when it was clear that (given Mr. Wiltshire’s and Mr. King’s evidence) they were unable to prove the accounts’ truth or accuracy.

(5)  The allegation that the transfer of the NZ51.6m was “unauthorised” since the authorisation documents (particularly the Graham Chin email) were all questionable and had no provenance.

(6)  The baseless suggestions that Messrs Kerry Knight and Nick Cross were not witnesses of truth but somehow implicated in the dishonest transfer of the NZ51.6m in February 2010 and implicated also in drafting a fraudulent sequence of transacting documents designed to advance the frauds on 462 and the HKSE.  The characterisation, without any evidential basis at all, that Mr Knight is a legal cowboy.  The Prosecutor does not even know of the material in the unused that demonstrates that Mr Knight was acting lawfully and upon instructions.

31.The accused also complain under this heading that the prosecution and Independent Commission Against Corruption have had over a decade to prepare for this trial with what are said to be unlimited resources against the accused.

Grounds (f) and (g): Unacceptable delay

32.The accused contend that, taken as a whole, the rights of the accused to trial without undue delay have been violated.  These rights are to be seen in Article 11(2)(c) of the Hong Kong Bill of Rights Ordinance and Article 87 of the Basic Law.

33.It is contended, citing Archbold for Hong Kong 2021, §4-53 that the test propounded there is “The question the court will focus on is: would there still be a fair trial if the accused has been so seriously prejudiced by reason of the lapse of time in bringing him to trial.”

34.The accused complain that while in some respects the present case is a document-based case critical witnesses were often required to give testimony based on their own recollection.  In this regard, those representing the accused instance the testimony of Mr Nicholas John Cross who, so it is contended, was asked to give his testimony from his own recollection rather than from documents.  Cross-examination of the same witness on documents produced very little else by way of recollection.

35.Those representing the accused complain that the ICAC in taking statements from witnesses did so by reference to memory only and not from contemporaneous documents.  It is complained that often such witnesses were faced with contemporaneous documents for the first time when they were cross-examined in the retrial ordered by the Court of Final Appeal.  It is contended that, accordingly, the defence of being denied the opportunity of being able to test the witness by reference to their memory and to contemporaneous documents.  It is contended that there were multiple occasions (the submissions say literally hundreds of occasions) when a witness said that he could not remember thus demonstrating the unreliability of the witness.

36.It is contended that the combination of circumstances identified by the accused render the trial unfair.

37.In this context those representing the accused take the example of Mr Ip Yu Chak, Barry.  He was the senior partner of the accountants (ShineWing) who advised 462 on the “Very Substantial Acquisition”.  It was contended “The contemporaneous knowledge of [ShineWing] that the figures emanating from D2 and D3 were assumed pro forma figures not least because UBAH had never traded; such that they could not be used in Appendix II,[32] or could only be used if very heavily caveated is an issue right at the heart of the case.”[33]  The point was made that Mr Barry Ip gave only a three-page witness statement to the ICAC which was on matters which are either of little relevance or no relevance at all.

38.Those representing the accused complain that this witness was asked to give evidence from his recollection.  As an example, they say that in cross-examination by the 2^nd Accused, this witness was asked what he had to do with the 2^nd Accused during the course of the processes that he undertook for 462.  The 2^nd Accused contend that the answer that Mr Barry Ip spoke to her one or two times or maybe three times was inaccurate when compared to the documentation which was later shown to him.  The contention was made that the contemporaneous record does not support this conclusion.  As for the key issue of whether hypothesised accounts could be used he told the Court that he could not remember whether he told anyone including Ms Chan Wai Kay, Katherine that they could not be used.  It was contended then that the failure of the ICAC to show to the witness the documentation which put what was said to be the contemporaneous record to him “and the failure of the prosecution to put the case on the basis of the contemporaneous documentation has resulted in the trial being dependent upon his recollection.  This deprives the defence of the ability to prove the truth of what is contained in the documentation, because the witnesses can no longer remember.”[34]

39.A further issue arose because neither Ms Katherine Chan of 462 nor Mr Barry Ip (the accountant) could remember the scope of the participation of a person named in some of the correspondence as “Johnny”. The relevance of this was that it was contended that he had been instructed to produce accounts for UBNZ (one of the companies of the 2^nd Accused). The issue of whether or not this was being done at the instance of 462 was of some significance.  It was contended that because nobody could remember who or where “Johnny” fitted into the scheme of things the issue could not be litigated and this was to the disadvantage of, in particular, the 2^nd Accused and the 3^rd Accused.

40.A further issue arose in relation to the issue of the existence and, if so, the nature and scope of an argument between 462 and the Stock Exchange of Hong Kong Limited over the necessity to produce a reporting accountants report in relation to the target assets to be acquired in the VSA.  There was a documentary record which was copied to Mr Barry Ip (the accountant) but his testimony was he could not remember the topic.  It was contended that he should have been shown the documentation in 2010 when his witness statement was being prepared to enable the accused to be able to take steps to properly cross-examine him.  It was submitted that there is a world of difference between accepting the truth of a document and saying whether a witness could remember whether or not a document was true.  Of this the accused contend: “That the former position might suffice for the purposes of the defendants being acquitted can only be known in hindsight.  If it transpired that it was not sufficient to secure an acquittal then the conviction (or indeed a hung jury) would be as a result of the trial having taken place at a time and in circumstances when the recollection of the witnesses was insufficiently reliable to establish the truth of what happened, to the prejudice of the defendants.  That is, by definition, unfair.”[35]

41.The accused complained that Mr Barry Ip could not remember whether those in charge of 462 to place pressure on him and his company to sign off on the accounts in Appendix II that, so it is contended, is critical to the knowledge of those in Mr Barry Ip’s accounting company as to whether the figure that were inserted had genuinely been ignorant of the true hypothesised basis of the figures emanating from the 3^rd Accused.  The point made by the accused is that Mr Barry Ip could not remember anything of this issue.

42.The case for the accused is that the problems started with the statement taking process undertaken by the ICAC in 2010.  In the contention of the accused, articulated in Appendix 1 to the written submissions of the accused is a list of the documents which were put to the potential prosecution witnesses when their statements were originally taken. The central argument was that few documents were put to them and none of the documents ultimately put by the defence in the course of cross-examination of those witnesses by the accused, particularly the 2^nd Accused.  In this regard, the written submissions contend that few relevant documents wherever put to the witness Mr Yip Kean Mun who became the Chairman of 462 and was chairman at the critical stage where some of the funds of 462 were paid to the 2^nd Accused.  Pausing there for a moment, while this payment is not the subject of a charge against the 2^nd Accused (it is capable of being relevant - at least to a degree - to the money-laundering charge levelled against the 1^st Accused) the sequence and legality (or otherwise) of that payment is circumstantially relevant to the state of mind of the 2^nd Accused. The written submissions of the accused make the point that in all of the statements of Mr Yip, few documents relevant to this transaction were ever put to him despite the fact that his memory of what happened in the sequence of what happened was critical to the case for the prosecution.

43.Those representing the accused have detailed in Appendix 2 to the Joint Defence Submissions the occasions when the principal witnesses for the prosecution said that they could not remember critical issues germane to the case.  The submissions contend that this was of critical importance in relation to the testimony of Ms Katherine Chan (the chair of 462 during critical moments of the transaction which underlay the indictment) and Mr Yip who was her successor and was the chair of 462 at critical times including the time that 2^nd Accused receive money from 462 and the events which followed in the subsequent months.  It was contended in relation to Ms Katherine Chan that critical to her memory lapses was the true nature of the of the transaction which underlay the VSA.

CASE FOR THE PROSECUTION

44.The prosecution submits that the kind of discretion contemplated in R v Bell [2010] EWCA Crim 3, [2010] 1 Cr App R 27 is not engaged in the present case.  The prosecution submitted that Lord Judge CJ explicitly dealt with that point when he observed that the considerations in Bell do not apply in cases other than ones where two trials have resulted in juries being discharged because they were unable to reach a verdict.  Lord Judge CJ observed:[36]

“This was not a situation in which either trial had, for whatever reason, such as illness or jury tampering, being brought to an untimely end, or where a conviction at the earlier trial had been quashed by the Court of Appeal.”

In short, the prosecution contends that the situation contemplated in Bell does not arise in the present case.

45.The prosecution contends that the situation is more akin to the considerations that arise when an appellate court considers ordering a retrial.  In this regard, the prosecution observed that Lord Judge CJ specifically catered for this by citing the approval of the decision of the Privy Council in Bowe and another v R [2006] UKPC 10, [2006] 1 WLR 1623.[37]  In that decision, Lord Bingham, delivering the advice of the Privy Council, held that not proceeding to a third trial where two previous juries have been unable to agree is more in the nature of a convention.  Lord Bingham held that while the prosecution may justifiably take the view that in such a situation there is no realistic prospect of obtaining a verdict in a third trial the issue is really one for the prosecution.  Lord Bingham said that there is no rule of law which prohibits a third trial but recognise that there may be situations where such a trial would be oppressive and unjust.  He held that a Court would be entitled to prohibit such a further trial but the decision depends “on an informed and dispassionate assessment of how the interests of justice in the widest sense are best served.”

46.The prosecution makes the point that in the present case, unlike the situation in Bell (above), the present trial which has resulted in the discharge of the jury was an order for a retrial following a verdict of guilty.  The appellate decision in favour of the convicted accused has characterised the decision as a decision “on a technicality”.  The prosecution contend that the evidence in the present case which was sufficient to sustain a conviction in the first trial remains very powerful.

47.The prosecution also rely on Reid v R [1980] AC 343 for the proposition that a further trial is justified upon the basis that those who are guilty of serious crimes to be brought to justice and not escape because of some technical blunder.  The relevance of the strength of the evidence was underlined in the decision of Au Pui Kuen v AG [1979] HKLR 16.  The point is made that in coming to the decision in Ting James Henry (above), a case heavily relied on by those representing the accused, the Court of Final Appeal did observe[38]:

“It can be contrary to the interests of justice if the public feel enraged or even disquieted at the fact that a defendant, who may have committed a serious offence, apparently escapes the normal consequences of his crime because a failure in the trial process has resulted in his conviction being set aside.”

48.It is contended that only basis on which a Court could interfere in a situation such as the present case would be upon the basis that the continuation of the case would be such as to be an abuse of the process of the Court.  It is contended by the prosecution that in such a situation the strength of the prosecution case is irrelevant.[39]  The prosecution makes the point that the circumstances in which proceedings may be stayed as an abuse of process have been articulated in this jurisdiction by the Court of Final Appeal in HKSAR v Lee Ming Tee & Anor (2001) 4 HKCFAR 133.  The remedy of a stay of proceedings is, so it is contended, a remedy of last resort and should only be granted where a fair trial is impossible and only after all alternative avenues for the conducting of a trial have been explored.  The decision in Lee Ming Tee was followed and applied by the Court of Appeal in Yeung Chun Pong v S-J [2008] 3 HKLRD 1.  The prosecution prayed in aid of their submissions, the observations in Yeung Chun Pong by Stock JA (as Stock NPJ then was) where he deprecated the use of stay of proceedings applications as generally an inappropriate and collateral attack on the criminal process.

49.In relation to the submissions of the accused where it is contended that in Ground (e) that there are fatal flaws in the case for the prosecution, it is contended by the prosecution that such a submission is irrelevant to the determination of whether a stay of proceedings should be ordered.  It is contended that far from the contentions of the accused, the prosecution case is in robust health.

50.In relation to the contention by the prosecution in Grounds (f) and (g) that there has been unacceptable delay, the prosecution have offered a chronology.  As I have indicated above, I combined the prosecution chronology with the chronology offered by the defence.  In relation to the events which occurred, the prosecution contends, in effect, that a good deal of time was wasted in aspects of the conduct of the Preliminary Inquiry.[40]  Further, prior to the setting down of the first trial, argument was set down for 3 to 6 February 2015 to hear arguments on the admissibility of evidence obtained in New Zealand.  The basis of that argument was that the defence had not been informed of the depositions taken in New Zealand might be used at the trial.[41]  Implicit in this point is a contention that time was wasted waiting for the resolution of that argument.  The prosecution also contend that a great deal of time was wasted after the Court of Final Appeal handed down its judgement ordering a retrial.  That was handed down on 30 August 2019.  The prosecution relies on correspondence with those representing the parties.  It was requested that the retrial be set down to commence either in or after January 2021 to accommodate counsel’s diaries.  In the result, the trial was set down to commence on 11 January 2021.  Further, the prosecution pointed to the fact that those representing the 2^nd Accused informed the prosecution and the Court that they were not in funds and as a result, the trial was adjourned to 8 February 2021.  In short, the prosecution contends that there has been a good deal of time lost and, in some instances, wasted in these proceedings.  It is contended that this is relevant to the issue of a stay of proceedings.

DETERMINATION

Chronology

51.Both sides have provided a chronology. Rather than set out two chronologies in the summary of argument, what I have done is set out one chronology which takes account of the contentions of both sides and is expressed in somewhat more neutral language.  The sequence of events and the time taken for some of those events to unfold (such as the Preliminary Inquiry and the first trial of these proceedings) is critical to any proper evaluation of the competing contentions under all of the heads of argument.  The chronology is as follows:

16 Dec 2010	1st Accused and 2nd Accused arrested and charged with conspiracy to defraud and money-laundering.
31 Jul 2011	3rd Accused arrested on arrival in Hong Kong.
26 Oct 2011	Worldwide restraint order imposed against each accused and the wife of the 1st Accused.
	Wife of the 1st Accused arrested and charged with money laundering.
14 Sep 2012	The accused elected a Preliminary Inquiry.
7 Jan 2013 to 13 Feb 2014	Preliminary Inquiry pursuant to Part III of the Magistrates Ordinance, Cap 227. All of the critical witnesses in the subsequent trials testified in the Inquiry.  All accused committed for trial to the Court of First Instance.[42]
7 Oct 2013 to 25 Aug 2014	Trial before the District Court of wife of 1st Accused and Wu Wing Kit[43] on money-laundering charges.[44]  Both were convicted.  They appealed against their convictions.
13 Oct 2015 to 29 Apr 2016	Trial in the Court of First Instance of the accused on charges of conspiracy to defraud and money-laundering.
26 May 2016	Appeal against conviction by wife of 1st Accused and Wu Wing Kit allowed.  Retrial ordered.[45]
6 Jun 2016	Sentencing of the accused.  Total sentences were: 1st Accused - 7 years and 9 months’ imprisonment 2nd Accused - 8 years and 3 months’ imprisonment 3rd Accused - 5 years’ imprisonment The accused lodged appeals against conviction.
1 Sep 2017	Verdict on retrial of wife of 1st Accused and Wu Wing Kit.  Both acquitted.
21 Feb 2017	Application by 1st Accused for bail pending appeal - refused.
12 Apr 2017	Application by 2nd Accused for bail pending appeal - refused.
18 Jul 2017 to 28 Jul 2017	Appeal against conviction by accused to the Court of Appeal.[46]
16 Apr 2018	Appeal against conviction to Court of Appeal dismissed.
14 Dec 2018	Application for leave to appeal to the Court of Final Appeal granted.  Bail pending appeal granted to each accused.[47]
30 Aug 2019	Appeal to the Court of Final Appeal allowed and retrial ordered.[48]  The accused complain that they were not given the opportunity to oppose the order for retrial.
10 Oct 2019	Letter from those representing the accused asking for the trial to be fixed for after January 2021 to accommodate counsel’s diary.
8 Jan 2020	Order for costs in favour of accused.[49]
11 Nov 2020 11 Jan 2021	Solicitors for 2nd Accused informed the Court that they were not in funds. Date fixed for retrial.
8 Feb 2021	Adjourned date of retrial.  The original date (11 Jan 2021) was adjourned in the hope that 2nd Accused could come to some arrangement about legal funding for the retrial.
18 Feb 2021	Accused arraigned on retrial.
16 Jun 2021 6 Aug 2021	Discharge of jury. Ruling awarding costs of the retrial to accused.

Principles that govern the disposition of this case

Terminology

52.As a matter of terminology, a retrial in its strictest sense is something that the Court of Appeal may grant on an appeal against conviction being allowed: section 83E(1), Criminal Procedure Ordinance, Cap 221.[50]  The power to order a retrial under section 83E(1) arises “if it appears to the Court of Appeal that the interests of justice so require”.[51]  The power of the Court of Final Appeal to order a retrial is to be found in section 17(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.[52]

53.An order for a retrial pursuant to section 83E is procedurally different to the situation where a jury is discharged from rendering a verdict in a trial on indictment.  Section 83E(2) imposes very specific limitations on the charge that the accused can face on such a retrial.  Section 83F deals with a number of procedural matters.  Perhaps, the most important is section 83F(4) which, through the Sixth Schedule has an important impact on modes of proof and the sentence which might be imposed on a conviction following a retrial.  Section 2 of the Schedule 6 empowers the Court of trial on the retrial to sentence to impose a sentence different to that imposed on the earlier trial.  While the evidentiary aids-to-proof in section 1 of that schedule are, in a very strict sense, different to the common law provisions for admissibility of evidence on the further hearing of a case, the differences are subtle and irrelevant for present purposes.

54.There are differences of more substance between a retrial in the sense that this word is used in the context of section 83E and a further trial on the same indictment following the discharge of a jury.  The first is that pursuant to section 83E there must have been a conviction.  In the context of a discharge of the jury that may occur at many different stages of the trial.  Sometimes that discharge might occur very early in a trial and very different dynamics operate in such case.  In the legal history of Hong Kong there has been a case where in relation to a single indictment, juries were discharged twice on the strength of things said improperly in the opening by the prosecutor.  In that specific case, a third jury was empanelled in the trial proceeded.  In such a case, it would be difficult to contend that a trial with a third jury caused injustice.  These events occurred within days of each other and not a word of evidence had been given.  One of the proceedings in the case of HKSAR v Liang Yaoqiang [2021] HKEC 3139, [2021] HKCFA 26, involved a jury being discharged part of the way through the testimony of the first prosecution witness.  The cause of that discharge was press coverage arising out of some of the salacious aspects of the testimony of that witness.

55.The attribution of fault to the event or events which triggered the discharge of the jury varies.  In some cases, fault could conceivably be relevant to whether a further trial on that indictment proceeds.  Indeed, in the instant case, part of the case for the accused in submitting that the jury should be discharged was an allegation that the prosecution had been at fault for the situation which arose.  As a matter of history, I rejected that allegation upon the basis that no one could have foreseen the answers from the witness which gave rise to the set of circumstances which triggered the discharge of the jury.[53]

56.By definition, to face in order for a retrial under section 83E, the accused will have gone through a full trial and have had to face a guilty verdict and have been the subject of a sentence.  It is no small thing to say that a person in that situation has to face the fact that they have been convicted, and that will be their status until their appeal is heard and determined.  In the present case, the accused have had the experience of a guilty verdict, a sentence of imprisonment, an unsuccessful appeal to the Court of Appeal and a successful appeal to the Court of Final Appeal with an order for a retrial.  When the order for discharge in the second trial occurred - the trial occasioned by the order for a retrial by the Court of Final Appeal - the trial was still in the prosecution case.  The prosecution case had almost come to a conclusion.

Further trial where two previous juries have disagreed

57.The defence submits that the relevant factors which inform the discretion to permit a further trial on the present indictment may be derived from Bell (above).  In that case, the English Court of Appeal (Lord Judge CJ, Simon & Royce JJ) were considering whether to order a retrial following a successful appeal to that Court.

58.The context in which that issue arose is quite important.  A judge and jury had earlier tried the appellant on two occasions the jury was discharged from rendering a verdict.  It appears that on both occasions the reason for discharging the jury was that it could not agree on a verdict.  Following the second discharge of the jury, the prosecution indicated that it intended to proceed with a third trial.  Submissions to resist such a course were made by those representing the accused.  The trial judge rejected that submission and a further trial was held on the same indictment.  In that third trial, the accused was convicted.  He appealed to the Court of Appeal.  It was contended on appeal that the trial judge wrongly permitted the prosecution to proceed with the third trial on the same indictment.

59.In the course of submissions, the Court noted the point that the jury is empanelled for the first and second trial had not determined whether or not the accused was guilty.  Of that submission, Lord Judge CJ, giving the judgement of the Court of Appeal held: “There is perhaps a danger of overlooking that the appellant was not acquitted at either of the two previous trials.  A second re-trial is not an appeal against an acquittal; there has been no verdict.  Its purpose is to establish whether the appellant has been proved to be guilty, or whether the true verdict should be that he is not guilty.”[54]

60.In considering the broader point, Lord Judge CJ observed:

“25 It was submitted by the prosecution that the judge was confined to deciding whether or not the decision of the Crown to proceed to a third trial was reasonable or unreasonable within the ambit of what, for shorthand, were identified as the Wednesbury principles [Association Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223]. The judge rejected the submission, acknowledging that the first decision whether a second re-trial was in the public interest should be made by the prosecution, but that it remained open to him to consider that question and decide whether or not the proposed second re-trial would be oppressive and unjust. We agree with the judge. The questions whether the public interest required a second re-trial and whether such a re-trial would be oppressive and unjust were inextricably linked. The Crown rightly addressed both. The decision to proceed was made, as it had to be made, in the round. But once made, the processes of the court were engaged, and the court has exclusive control over those processes. The ultimate question for the judge was whether the interests of justice (which require a fair trial in circumstances which are neither oppressive nor unjust) justified a second re-trial.

26 The judge reflected on all the relevant considerations and concluded that notwithstanding that there would almost certainly be no fresh evidence, so that a second re-trial would indeed replicate much of what had gone on at the previous trial, that feature was “outweighed … by the fact that this is a case of the utmost seriousness, namely, the alleged murder of a defenceless girl for sexual motive and by the strong public interest in the achievement of a positive decision and thus finality, if possible”. He noted that if the Crown decided that less evidence should be called at the second re-trial, it would be possible to ensure that no unfairness or disadvantage would be occasioned to the defendant, because the court could require the Crown to tender any witness it was no longer intended to call. Accordingly a second re-trial was appropriate.”

In the result, the English Court of Appeal held that the appellant had received a fair trial and the decision of the trial judge to permit the third trial to proceed was an appropriate one.

61.Nevertheless, the English Court of Appeal held that broader considerations applied. The Court was reluctant to provide guidelines. The Court observed:[55]

“We doubt the value of offering further guidance on the circumstances in which a second re-trial may be appropriate.  We shall confine ourselves to reminding the Crown that the jurisdiction which permits a second re-trial after two jury disagreements in circumstances like the present must be exercised with extreme caution.  The broad public interest in the administration of criminal justice leads us to the clear view that a second re-trial should be confined to the very small number of cases in which the jury is being invited to address a crime of extreme gravity which has undoubtedly occurred (as here) and in which the evidence that the defendant committed the crime (again, as here) on any fair minded objective judgment remains very powerful.”

Retrial under section 83E

62.In HKSAR v Zhou Limei (No 2) (2020) 23 HKCFAR 169, the Court of Final Appeal reviewed the principles which inform the discretion to order a retrial pursuant to section 83E(1) of the Criminal Procedure Ordinance.  As already noted, the statutory criterion for making such an order is that the interests of justice so require.  In Zhou Limei (No 2), Ma CJ observed:[56]

“The following principles, distilled from the above and other cases, are relevant in the present case:

(1) Whether or not a retrial should be ordered is a matter of discretion. This discretion is usually exercised, as it should be, by the Court of Appeal, relying on their “collective sense of justice and common sense.” And, as was put by Lord Bingham of Cornhill, there must be “an informed and dispassionate assessment of how the interests of justice in the widest sense are best served”; it is important to maintain “confidence in the efficacy of the criminal justice system.”

(2) The discretion whether or not to order a retrial depends entirely on what justice requires (this being the “critical question”).

(3) The interests of justice of course include a consideration of an accused’s interests and circumstances. The criminal justice system is there to bring matters to a conclusion without undue delay and without oppression; these are “accepted norms”. It should be acknowledged that any criminal trial is to some degree an ordeal for the accused. The interests of justice also include the interest of the public in seeing those who are guilty of serious crimes brought to justice and not escape merely because of a technical error in the conduct of a trial or in the summing up to a jury. In Au Pui Kuen v Attorney General of Hong Kong, Lord Diplock referred to the following passage from the judgment of Gould Ag CJ in Ng Yuk Kin v The Crown: that there may be cases where it “is in the interest of the public, the complainant, and the appellant himself that the question of guilt or otherwise be determined finally by the verdict of a jury, and not left as something which must remain undecided by reason of a defect in legal machinery”. In assessing the public interest, a court must take into account the views of the prosecution which is best qualified (and I would add has the duty) to present the views of the public, although it must ultimately be for the court to determine what is in the public interest. The strength of the prosecution case is also a relevant consideration.

(4) The interests of justice require all relevant factors, both for and against a retrial, to be taken into account. Such factors will not only vary from case to case, but their relative importance and weight will also be different in any given case.

(5) The above said, one factor that must be given significant weight is the fact that the accused has already undergone a trial, in particular where the trial is long and complex. This is all the more so when there is involved a second retrial, which means of course the possibility of a third trial for the same offence. In Mok Kin Kau v HKSAR, the ordering of a second retrial after two concluded trials and appeals, and the serving of the whole sentence, was said to be an “unusual course” and in such a situation, in the absence of a special or compelling reason, this was a “departure from accepted norms” sufficient to constitute a substantial and grave injustice. Although it is not unprecedented for a second retrial to be ordered, the cases accept that this is an “unusual” course to take, even where the accused has not served the whole of his or her sentence as was the case in Mok Kin Kau v HKSAR. Given that the ordering of a second retrial is an unusual course, a court would have to be persuaded by cogent and compelling reasons to make such an order. This is consistent with the interests of justice, but of course all relevant factors must be carefully weighed in this exercise of discretion.

(6) Another factor that should also be taken into account is the time that an accused has spent in custody and in relation to this facet, the time that an accused has been in custody will have to be seen against the likely sentence that he or she might receive on a retrial.”

63.This summary of principles was adopted by Cheung CJ in Liang Yaoqiang (above).  Cheung CJ characterised these principles as “well-established”.[57]

64.The essence of the decision in Bell (above) was that two characteristics were identified which had to be satisfied prior to a second retrial taking place: (a) that the alleged offence was one involving a crime of extreme gravity, and (b) that the evidence against the accused on any fair-minded objective judgment remained very powerful.  The decided cases stated that permitting a case to go forward to a second retrial would be the exception rather than the rule and it required the most careful consideration by a judge before he permitted such a retrial to take place.  The decision in Bell (above) was followed in R v Ali [2011] EWCA Crim 1260, [2011] 3 All ER 1071, [2011] 2 Cr App R 22.

65.The issue was further considered in R v Burton [2015] EWCA Crim 1307, [2016] 1 Cr App R 7.  In that case, the appellant was convicted of conspiracy fraudulently to evade the prohibition on the importation of a Class A drug, namely cocaine.  On appeal, there were two principal issues.  The first was whether the appellant should have been tried at all.  This was a case where there have been two previous trials where the jury had not been able to agree.  In the third trial, the trial judge, in permitting the prosecution to proceed, gave brief reasons.  In the result, the principles articulated in Bell (above) were accepted as correct by the English Court of Appeal.  They held that the judge who had permitted the third trial to proceed had not given adequate reasons for adopting the position. The Court reviewed the decision of the judge at trial.  The assessment of the Court was that the case was serious but within the approach in Bell (above) not quite serious enough.[58]  However, the Court was clearly unpersuaded that there was strong evidence against the appellant.[59]  The Court observed that the rule requiring strong reasons for a third trial subsumed the overall interests of justice.  The Court observed:[60]

“Turning to the wider interests of justice it seems to us that some of the relevant considerations such as the need for finality and the need to prevent oppression by the Crown seeking repeated trials until it can secure a guilty verdict are already built into the process by reason of the identified convention that ordinarily a second retrial will not be permitted.”

66.It appears, however, that the Court also was prepared to allow the appeal on defects which occurred within the trial.[61]

67.In my opinion, the principles articulated in Bell (above) and the authorities which follow it do not establish a hard and fast rule.  It is based on the obvious and sensible proposition that if a case on indictment has been fairly presented twice and on each occasion a jury is unable to agree on a verdict then there would need to be something fairly compelling to justify that a further trial on that indictment should proceed.  What Bell (above) says is in two parts.  The first is that it enjoins a prosecuting authority to think very hard before embarking on a third trial on an indictment in the circumstances where a jury has been unable to agree in two previous trials on that indictment.  If the prosecuting authority is determined to proceed, then it is open to the Court of trial to refuse to permit such a third trial.  If such a trial was permitted by the Court of trial, and if the accused was convicted on that third trial it would be open to an appellate court to allow an appeal against conviction on the basis that the determination of the Court of trial to permit such a trial to proceed miscarried.  The basis upon which judicial intervention either of the court of trial or, following a conviction, on appeal should be permitted (a) that the alleged offence was one involving a crime of extreme gravity, and (b) that the evidence against the accused on any fair-minded objective judgment remained very powerful.  The decided cases stated that permitting a case to go forward to a second retrial would be the exception rather than the rule and it required the most careful consideration by a judge before he permitted such a retrial to take place.  Lord Bingham held that permission to allow a further trial in these circumstances but the decision depends “on an informed and dispassionate assessment of how the interests of justice in the widest sense are best served.”

68.The position in the instant case is, from a procedural standpoint, clearly different.  In the first case, the trial went to a conclusion and resulted in verdicts of guilty.  There are, of course, distinctions between the present indictment and the former indictment.  The flaws in that former indictment were identified by the Court of Final Appeal.  I do not think that the identification of these flaws can be characterised as a mere technicality.  Nevertheless, the evidence and the issues in the trial which resulted in the conviction being quashed because of flaws in the indictment is, in substance pretty much the same as the evidence and issues in the retrial ordered by the Court of Final Appeal.  Certainly, the prosecution case has been the same in both proceedings.  There are obvious differences of approach in the manner of the conduct of the defence as between the first trial and the retrial.  But to discuss the differences always runs the risk of missing the broad similarity between the two proceedings so far as evidence and issues are concerned.

69.While procedurally the determination of whether to order a retrial is different to dealing with the decision to permit a further trial on the same indictment where two previous juries have not been able to agree, I regard the considerations which drive that determination as, within limits, essentially the same.  It is true that an appellate court has information how a jury viewed the evidence in the prosecution case when, following a conviction, such an appellate court determines to quash the conviction and possibly order a retrial.  However, information about how the jury approach the evidence at the trial which produced the conviction which is quashed might be illusory.  This is because the jury may have been distracted by inadmissible evidence or being permitted to undertake prohibited reasoning.  Accordingly, when determining whether to order a retrial, the verdict of the jury in the impugned trial may not be of much assistance.

70.Section 83E provides the statutory criterion for the determination of whether or not to grant a retrial.  In Zhou Limei (No 2) (above), the Court of Final Appeal has articulated a number of the considerations which inform the manner in which the statutory criterion should be exercised.  Making allowance for the difference in the procedural position between acceding to a further trial in the Bell (above) situation and the grant of a retrial, it seems to me that the considerations which inform the discretion are fundamentally the same.  Ma CJ in Zhou Limei (No 2) was careful to make the point that the list of considerations which might inform the exercise of the discretion to order a retrial under section 83E was not an exclusive list.  Further, the weight to be attached to any consideration will vary according to the circumstances.  In both Zhou Limei (No 2) and Liang Yaoqiang (above) there was abundant evidence to establish the offence charged, but other considerations informed the decision.  In neither case did the issue of whether the accused could obtain a fair trial fall for consideration by the appellate court when it determined that it was in the interests of justice to require a retrial.  The right to a fair trial is constitutionally guaranteed.  Nevertheless, in my opinion it would be absurd to say that fair trial issues would not be relevant in either the Bell (above) situation or the section 83E situation.

71.A further consideration which is capable of being considered under either the Bell (above) situation or the section 83E situation is the time taken including likely future time taken to bring a case to resolution.  In my opinion, undue delay is well capable of being a cogent consideration in the determination of whether to permit a further trial under the Bell (above) situation or to order a retrial in the section 83E situation.  Both situations require consideration of the overall interests of justice and given that the right to a trial without undue delay is guaranteed by Article 87 of the Basic Law I cannot conceive of how considerations of undue delay would not be relevant to the determination in either the Bell (above) situation or the section 83E situation.  Indeed, the issue of whether to grant a stay of proceedings because the Court finds that there has been undue delay is, as the authorities clearly demonstrate (as to which see below), the right to a fair trial is central to that consideration.

Delay

Principles engaged

72.The community expects that those charged with criminal offences will be tried without undue delay.  That is a right vested in an accused person and guaranteed by Article 87 of the Basic Law.[62]  Where there is an issue of delay, the determination of whether such delay can be characterised as undue delay and if it can be so characterised what the consequences are is determined by considering a wide variety of factors.  This is because delay and more particularly undue delay has to be considered in the context of other factors that comprise the public interest in the just disposition of criminal proceedings.  Central amongst those other factors are:

(1)  The concern is that those who are charged with criminal offences have those charges determined according to law; and

(2)  In determining a criminal charge, the accused is given a fair trial.

73.In addition, there will be cases where the interests of victims of criminal conduct are relevant considerations.  These considerations include resolution and sometimes vindication of interests and the bringing of what is sometimes termed closure.  There will also be cases where the interests or circumstances of the accused other than his or her interest in a fair trial will be a relevant consideration.

74.One of the best lists of factors to be considered in dealing with issues of delay comes from Jago v District Court (NSW) (1989) 168 CLR 23.  In that case, Deane J suggested that the considerations which a Court ought to take into account in considering the issue of undue delay are as follows:[63]

(1)   the length of the delay;

(2)   reasons given by the prosecution to explain or justify the delay;

(3)   the accused’s responsibility for and past attitude to the delay;

(4)   proven or likely prejudice to the accused; and

(5)   the public interest in the disposition of the charges of serious offences and in the conviction of those guilty of crime.

75.Deane J was careful to characterise the list as a list of considerations and not a definitive guide.  His Honour held that these headings “provide convenient reference points for answering the question whether the effect of a delay in a particular case is such as to bring about a situation where any trial will necessarily be an unfair one from the accused’s point of view or a situation where the continuation of proceedings would be so unfairly oppressive that it would constitute an abuse of process.  They should not, however, be treated as a code or permitted to divert attention from the fact that what will ordinarily be involved in answering that question is the formation of a value judgment in the context of the nature and seriousness of the alleged offence and having regard to all other relevant circumstances.”

76.Deane J’s list must be placed in context.  In Australia, there was at the time of Jago (and remains) no constitutionally based free-standing right to a trial without undue delay.  In Jago, the High Court of Australia held that there was not a freestanding right to trial without undue delay but held that undue delays should be considered in the context of the right to a fair trial.

77.The seminal decision on this topic is Attorney General’s Reference (No 2 of 2001) [2003] UKHL 68, [2004] 2 AC 72.  In the context of a contention of delay in the context of a right to trial without undue delay which was constitutionally guaranteed, Lord Bingham held:[64]

“If, through the action or inaction of a public authority, a criminal charge is not determined at a hearing within a reasonable time, there is necessarily a breach of the defendant’s Convention right under article 6(I). For such breach there must be afforded such remedy as may (section 8(I)) be just and appropriate or (in Convention terms) effective, just and proportionate. The appropriate remedy will depend on the nature of the breach and all the circumstances, including particularly the stage of the proceedings at which the breach is established. If the breach is established before the hearing, the appropriate remedy may be a public acknowledgement of the breach, action to expedite the hearing to the greatest extent practicable and perhaps, if the defendant is in custody, his release on bail. It will not be appropriate to stay or dismiss the proceedings unless (a) there can no longer be a fair hearing or (b) it would otherwise be unfair to try the defendant. The public interest in the final determination of criminal charges requires that such a charge should not be stayed or dismissed if any lesser remedy will be just and proportionate in all the circumstances. The prosecutor and the court do not act incompatibly with the defendant’s Convention right in continuing to prosecute or entertain proceedings after a breach is established in a case where neither of conditions (a) or (b) is met, since the breach consists in the delay which has accrued and not in the prospective hearing. If the breach of the reasonable time requirement is established retrospectively, after there has been a hearing, the appropriate remedy may be a public acknowledgement of the breach, a reduction in the penalty imposed on a convicted defendant or the payment of compensation to an acquitted defendant. Unless (a) the hearing was unfair or (b) it was unfair to try the defendant at all, it will not be appropriate to quash any conviction. Again, in any case where neither of conditions (a) or (b) applies, the prosecutor and the court do not act incompatibly with the defendant’s Convention right in prosecuting or entertaining the proceedings but only in failing to procure a hearing within a reasonable time.”

Lord Bingham cited with approval Martin v Tauranga District Court [1995] 2 NZLR 419 and in particular the judgment of Hardie Boys J where he observed: “The right is to trial without undue delay; it is not a right not to be tried after undue delay.  Further, to set at large a person who may be, perhaps patently is, guilty of a serious crime, is no light matter.  It should only be done where the vindication of the personal right can be achieved in no other satisfactory way.”  The decision in Attorney General’s Reference (No 2 of 2001) (above) has been consistently followed.[65]

78.In A-G v Cheung Wai Bun [1994] 1 AC 1, [1993] 1 HKCLR 249, Lord Woolf, following the decision in Attorney General’s Reference (No 2 of 2001) (above), indicated that if there was a difference between the considerations at common law and with respect to a constitutionally guaranteed right, the circumstances in which it was likely to matter were very limited.

79.The decision in Attorney General’s Reference (No 2 of 2001) (above) was decided in the context of whether or not a stay of proceedings should be ordered.  Undue delay in criminal proceedings is one of a number of bases upon which a stay of proceedings might be ordered.  Indeed, it is clear from the passage cited above from Attorney General’s Reference (No 2 of 2001) that the general principles about the exceptional nature of a stay are of the order the grant of a stay of proceedings on that basis.

80.It is appropriate to note the nature of the remedy of stay of proceedings.  Lee Ming Tee & Anor (above) stands for the proposition that the staying of criminal proceedings would only be justified in highly exceptional circumstances.  A stay would be granted if, first, notwithstanding the range of remedial measures available, a fair trial for the accused was impossible and continuing the prosecution would amount to an abuse of process.  Secondly, in very rare cases, a stay might be granted, although the fairness of the trial was not in question, because the circumstances involved an abuse of process which so offended the Court’s sense of justice and propriety that the entire prosecution was tainted as an abuse of process.  What is critical is the reason why such a remedy is exceptional.  Ribeiro PJ observed:[66]

“There are cogent reasons why in principle and in practice such stays are highly exceptional.

In the first place, it is only in very unusual circumstances that a court can properly be satisfied that a fair trial is ‘impossible’. The ‘fairness’ achievable is judged in practical and not absolute terms. As Brennan J pointed out in Jago v District Court of New South Wales (1989) 168 CLR 23 at p.49:

‘If it be said that judicial measures cannot always secure perfect justice to an accused, we should ask whether the ideal of perfect justice has not sounded in rhetoric rather than in law and whether the legal right of an accused, truly stated, is a right to a trial as fair as the courts can make it. Were it otherwise, trials would be prevented and convictions would be set aside when circumstances outside judicial control impair absolute fairness.’

More importantly, the court’s primary endeavour is to ensure that a fair trial takes place, employing the law’s available resources, and not to abort it on the ground that fairness cannot be attained, save as a last resort.”

Ribeiro PJ also cited[67] a passage from Lord Lowry in R v Horseferry Road Magistrates Court, ex p Bennett [1994] 1 AC 42 as follows:[68]

The discretion to stay is not a disciplinary jurisdiction and ought not to be exercised in order to express the court’s disapproval of official conduct.  Accordingly, if the prosecuting authorities have been guilty of culpable delay but the prospect of a fair trial has not been prejudiced, the court ought not to stay the proceedings merely ‘pour encourager les autres.’”

81.In short, there is a high public interest in the fair determination of criminal proceedings – especially proceedings alleging serious criminality.  That interest exists no less when considering to permit a third trial on an indictment where two previous juries have disagreed.  Lord Bingham’s test in Bowe (above) based “on an informed and dispassionate assessment of how the interests of justice in the widest sense are best served.” It must surely include this aspect of the public interest.  In my opinion the same is true in determining whether to order a retrial.  Ma CJ in Zhou Limei (No 2) (above) said so.[69]

Application to the present circumstances

82.The trial in these proceedings came to an abrupt and unfortunate end for the reasons I have examined in my ruling in which I ordered the discharge of the jury.  Contrary to the submissions of the accused, I attribute no fault to either party.  The basis upon which I discharged the jury was that a witness revealed critical and prejudicial information about the 1^st and 2^nd Accused, which no one could have foreseen coming out of the mouth of that particular witness.  I agree with those representing the accused that it was not the fault of the accused.

83.The result is that it has taken a very long time to get to even this stage of the proceedings.  Part of the reason that it is taken so long to get to where we are at the moment can be laid at the feet of the accused.  I am not in a position to assess whether time was wasted in the Preliminary Inquiry before the Magistrate.  There is more than a hint in the submissions of the prosecution that this was the case.  It is true that a long time was taken on that proceeding but I am not in a position to come to any conclusion about whether it was a waste of time.  The fact of the matter is that it took a long time for the first trial to be listed and the trial itself took a long time.  The appellate proceedings which followed the first trial in their own way took a long time.  While it would have taken some time to re-list the proceedings following the order for retrial by the Court of Final Appeal, clearly, a substantial proportion of the time between the order made by that Court and the hearing date before the Court of First Instance can be attributed to the desire of the accused to have specific counsel.

84.I do not doubt that the combination of circumstances both personal and economic articulated in the submissions on behalf of the accused have caused anxiety and frustration.  That these proceedings have been protracted has, no doubt, exacerbated the position.  A substantial part of the freedoms of the accused which have been cut down in this case have been caused by the civil proceedings.  It takes little imagination to see the economic or financial consequences of those proceedings on each of the accused.  That includes issues about the funding of their defence in the present and any future proceedings.  It would be inappropriate for me to express any views about the merits of those proceedings or the appropriateness of bringing and maintaining the civil proceedings.  I accept as true that the accused have suffered the obvious consequences of orders made in connection with those proceedings.  In the specific case of the 1^st Accused, no doubt the anxiety produced by the proceedings against his wife have also had an impact on him.  I have also taken careful account of the difficulties suffered by the 2^nd Accused and the 3^rd Accused in consequence of the criminal and civil proceedings.  One of the points made by each of the accused is that while they are on bail at present, their various ties both personal and economic are largely in places other than Hong Kong.  These facts and circumstances are greater than many if not most accused persons have to endure when facing accusations of serious criminality.  However, those facts and circumstances suffered by the accused in the present case nevertheless do not provide a basis upon which this Court could interfere with the continuation of otherwise regular criminal proceedings.

85.This case concerns events in parts of 2008, all of 2009 and parts of 2010.  It is idle to perform a precise calculation but the events the subject of these proceedings occupy about 24 months.  The case itself, even to arrive at the present stage has taken a very long time.  It is appropriate to consider the matter by reference to the considerations propounded by Deane J in Jago (above).

Deane J’s considerations

The first three considerations

86.The first consideration is the length of the delay.  Given the nature of criminal proceedings and particularly given the nature of criminal proceedings where a complex and serious crime is alleged, there will be of necessity a good deal of time taken up between institution of proceedings and the ultimate resolution of those including appellate proceedings.  In my opinion, although I was not and am not privy to the decisions taken as to how and when matters were listed, that aspect of the process appears to me to be appropriate.  The time taken between the order for committal and the commencement of the first trial is about 1 year and 9 months. Neither party has contended that this was inordinate.  The time taken for investigation and decision-making as to what charges to prefer appears to be appropriate.  A long time was taken between charge and the commencement of the first trial.  Some of that was taken up with the Preliminary Inquiry which went for what appears to me to have been a very long time.  The first trial and the appellate proceedings took time commensurate with the nature of the proceedings and the issues which arose.  I cannot say how long it should have taken to start the retrial after the order for such a retrial, but I have difficulty accepting that it would have taken between August 2019 and January 2021.  The retrial, itself was consistent with the kind of issues, reasonably expeditious. Nevertheless, taken as a whole, it is inescapable that these proceedings have taken a very long time.

87.The next consideration concerns reasons given by the prosecution to explain or justify the delay.  The prosecution suggests that there was delay in the Preliminary Inquiry.  They also point to unnecessary time taken up between the order for a retrial in the Court of Final Appeal and the listing of the retrial.  The prosecution point to issues about the availability of defence counsel being the cause of a substantial amount of time taken up.  As I have already indicated, I do not have sufficient information to make a finding one way or another about delays or time being wasted in the Preliminary Inquiry.  That said, instinctively the time taken does appear to be very, very long.

88.Also relevant is a consideration of the accused’s responsibility for, and past attitude to, the delay.  In the oral submissions, there was nothing from those representing the accused to gainsay that there was unnecessary time taken up between the order for the retrial and the commencement of the retrial.  However, it is not practicable to quantify that.  Perhaps more importantly, a substantial number of topics that form the basis of the submissions on behalf of the accused arose before the commencement of the present trial.

89.I consider that the two main issues in Deane J’s list of considerations are (1) proven or likely prejudice to the accused, and (2) the public interest in the disposition of the charges.

Proven or likely prejudice to the accused

90.The issue of proven or likely prejudice to the accused arises in a number of aspects.  The accused lay particular stress in their submissions upon the basis that many of the witnesses had difficulty in remembering aspects of the events which occurred in either 2009 or 2010.  The appendices to the written submissions in support of the applications presently under consideration outline in considerable detail the memory issues various witnesses had.  It is fair to say that different witnesses had different problems.

91.Ms Katherine Chan who was one of the two principal witnesses in the case, in common with many witnesses had difficulty in remembering details.  However, in my opinion, as to the central issues in the case which were covered by her testimony she had a reasonably good memory.  She was the chairman of 462.  She was present when the 1^st and 2^nd Accused brought the proposal in March or April 2009 to her until she was supplanted as chairman of 462 in January 2010.

92.Mr Yip Kean Mun was the other principal witness.  He became chairman after the demise of Ms Chan.  He was a witness who had more difficulty in remembering details.  It may well be that some of the details which this witness purported not to remember were things he would rather not remember.  The central area of concern for his testimony involved events in 2010 over the disposition of money from 462 to the 2^nd Accused and whether that was authorised in law.  The issue in this regard was complex.  The prosecution case was that on no account was the disposition of money of 462 to the 2^nd Accused authorised at the time of the disposition.  The case for the defence, and, in particular, the 2^nd Accused was that 462 had authorised such payment and she was entitled to it.  It is fair to say that at the time the jury was discharged, this issue was still in the process of being tried.  Perhaps, the most critical component of Mr Yip’s evidence concerned his interaction with another director of 462 over the payment of money to the 2^nd Accused.  There were a number of possibilities as to how Mr Yip was involved in this aspect.  The possibilities included various forms of complicity in the payment (on the assumption it was not authorised) and the possibility that he was negligent or inattentive as to what was unfolding in relation to the payment.  Following the payment there was, in due course a series of queries by those in charge of the accounts for 462 as to this payment and its true nature.  There was a good deal of evidence about how such a payment was to be treated in the books and accounts of the listed company.  I emphasise that these are possibilities and the dangers of expressing a concluded view before all the evidence was in presents manifest dangers.  There was a multitude of detailed facts and issues that had to be dealt with by Mr Yip both as to the run-up to the payment and its aftermath.

93.The witnesses from the accounting firm ShineWing from the managing partner to a series of young accountants who went to New Zealand to look at the books and records of the farms which were to be purchased by companies under the control of the 2^nd Accused, each had difficulties in remembering details of some aspects of their task.  There were a number of critical components to this task.  This accounting firm was appointed by 462 to prepare accounts for the circular to shareholders which is required under the Listing Rules where there was a proposed acquisition of the type contemplated in this case.  The case for the prosecution was that the materials wich had to be supplied by the 2^nd Accused had to be historical figures which was past performance of the farms.  The case for the accused was that of necessity these figures had to be what were characterised as pro forma figures and, more importantly, the firm of accountants and the staff concerned with the preparation of these accounts well knew that to be true and so did the chairman of 462, Ms Katherine Chan.  In short, the case for the accused was there was never any contemplation of anybody being defrauded by these figures.  To an extent, the detail of what these accountants learned from the 2^nd and 3^rd Accused was of some importance.

94.Each of the foregoing witnesses was cross-examined in substantial detail.  Each of them had testified in the previous trial.  That said, there were aspects of that detail that they had not faced in the previous trial.

95.Allied to this issue was a criticism levelled at the ICAC investigators.  The submission on behalf of the accused was that the statements they took from witnesses such as foregoing witnesses were, by any measure, superficial and did not refer that witness to what was said to be critical documents in the case.  Detailed examples were given in the written submissions and I do not propose to repeat them here.  Part of the problem was that the vast majority of documents upon which these people were cross-examined and which revealed difficulties with their memory were documents which apparently were in the unused material.  On that premise, so the argument ran, these were documents upon which statements could have been taken when the matter was supposed to be investigated.  It is fair to say that a measure of the material produced for cross-examination from unused material amounted to three or four box files for each of the accused.[70]

96.Against that it has to be said that this complaint in part loses sight of the fact that these witnesses have been cross-examined in detail twice before.  Once at the Preliminary Inquiry and then in the first trial.  Both of those proceedings were considerably closer in time to the events in question.  It is probably fair to say that there has been with respect to the conduct of the first trial something of a change of emphasis but viewing the documents which were the subject of cross-examination of these witnesses, perhaps, particularly, the accounting witnesses it is small wonder that they have difficulty in remembering these matters.  It is certainly true that when one compares the witness statements taken by the ICAC they do not deal with perhaps even one-third of the documents put to these witnesses in the retrial.  When investigators prepared this trial, it is obvious that they saw things in a different light to the way matters have been presented in the present trial.  It is also true to say they certainly did not see things in the way that was put these witnesses by the 2^nd Accused and the 3^rd Accused in this trial.  With the perfect clarity of hindsight at least some of those documents could possibly have been put to these witnesses when their statements were taken by the ICAC.  Certainly not all of them.  However, I do not think that any of this prejudiced a fair trial.

97.The point is made by those representing the accused that some documents have been destroyed.  What I think is referred to in this regard are the documents concerning Ms Katherine Chan’s instructions to her lawyer and advice rendered by her lawyer in relation to the issue of whether she did some “deal” with the ICAC.  The deal hinted that by the defence was a deal of immunity in exchange for testimony.  It is right to point out that there was no disclosure of any such arrangement and the prosecution position is, as I understand it, there was no such deal.  It is plain beyond argument that if there was such a deal then it must be disclosed.  In the course of the trial, Ms Katherine Chan was cross-examined about events which occurred after she was arrested in connection with allegations of misconduct within 462.  She was interviewed under caution by officers of the ICAC.  She was bailed by the ICAC with a restriction on being able to leave Hong Kong. In the result, she was released from those restrictions and from bail.  She then had a series of conversations with the ICAC.  I determined that Ms Katherine Chan gave a limited waiver of privilege in relation to her dealings with her lawyer in relation to the first interview that she gave to the ICAC under caution.  I held that the waiver did not extend beyond that.  In the result, a document summons was issued and although it is fair to say that the issue was not perfectly determined, it was plain enough that the relevant documents had been destroyed.  Those documents are, in my view, peripheral to the principal issues of trial.  In my opinion, their absence is of little moment in this case.

98.It is also relevant to ask how important the details not remembered or not well remembered were.  In my opinion, the relationship between the forest and the trees, in summoning up that hackneyed phrase, is rather apt in this case.  For example, it was suggested to Ms Katherine Chan that the whole arrangement was a joint venture rather than the scheme that was revealed in the agreement between the companies standing for 2^nd Accused and 462.  The reference to a joint venture came from an early communication from Knight Coldicutt, the New Zealand solicitors for 462.  Although it was never truly articulated what that might mean in terms of obligations and benefits for both 462 and the company’s standing for the 2^nd Accused, what Ms Katherine Chan was unable to remember was how it came about that the New Zealand solicitors suggested this might be a joint venture.  The central premise underlying the cross-examination was that 462 must have instructed those solicitors to say what they said otherwise they would not have said it.  Ms Katherine Chan said that what was important to her was what the final deal was.  That was revealed in the agreement signed for and on behalf of 462 on the one part and the companies standing for the 2^nd Accused on the other part.  Certainly, Ms Katherine Chan could not recall the issue of how the New Zealand solicitors got this idea but, as she consistently said, what mattered was the final deal signed between the parties.

99.Another example arises in relation to the ShineWing accountants who went to New Zealand.  They were unable to remember aspects of their approximately 3-week sojourn in New Zealand.  The prosecution case was that there was a conspiracy to put false figures in the shareholders circular and the principal parties who generated those false figures were the 2^nd Accused and the 3^rd Accused.  The case for the prosecution was that what was required under the Listing Rules was that the figures be historical figures.  Essentially two central issues arose in this context.  One was the source of the figures eventually put forward to go in the shareholders circular.  The second was whether the accused had agreed to present false figures.  There was an issue of whether the accountants were complicit in the figures placed in the circular.  Did these accountants, in effect, go along with the figures supplied by the 2^nd Accused and the 3^rd Accused for publication in the circular.  Of course, that was only the first link in the chain.  From there it had to be established that Ms Katherine Chan on behalf of 462, the shareholders of 462 and the Stock Exchange appreciated the nature of the figures.  Ms Katherine Chan denied this. Part of the prosecution case was devoted to the demonstration of the proposition that the figures could not possibly be true.  The accountants were cross-examined on these topics at great length and in searching detail.  There were many, many details concerning what they were doing in New Zealand and what they were expected to do down there which they could not remember.  However, in my opinion, their failure in this regard did not detract from the central issues that have to be faced.

100.Had this case proceeded to a summing up, it would have been necessary to give directions as to the time taken from the events the subject of the indictment to the time when the witnesses came to testify about those events.  The obvious starting point for such a direction would be Item 29 of the Specimen Directions issued by the Hong Kong Judicial Institute in 2013.  There is, of course, a multitude of Hong Kong, English and Commonwealth authority to assist in the formulation of the appropriate directions in this regard.  The direction in the specimen directions would almost inevitably have to be modified to fit the specific circumstances of the instant case.  In my judgement, such directions formulated with the assistance of counsel would have fitted the bill in the present trial and, within limits, would do so in any future trial.  It would be necessary to articulate in a realistic way, the nature and extent of the forensic disadvantage which might have been suffered by the accused.  However, this must be qualified by the fact that the true nature of such a direction would have to take account of all of the evidence and speculating about such a direction in the absence of knowing whether one or more of the accused would testify rather underlines the nature of the speculation.  Finally, whether or not the accused testified, the direction would have to tie the issues and problems back to both the burden and standard of proof.  The jury would have to be directed that if they considered that the inability of the witnesses to remember certain details was such as to render their testimony unreliable on the central issues of the case then it would not be proper to convict the accused.

101.In my opinion, a proper direction as to the effect of the time taken between the conduct the subject of the indictment and the testimony of witnesses would be a very important weapon to ameliorate the effects of delay.  However, in my opinion, it is by no means the only weapon available.  In my opinion, there were ample avenues consistent with the due observance of the rules of evidence and procedure which might have avoided in the trial over which I presided and would be capable of avoiding such problems in any future trial.  Some of those avenues concern the means available to refresh the memory of witnesses who plainly struggled at times to remember details of the case.  It is inappropriate for a trial judge to intervene in the examination of witnesses except to prevent or minimise non-observance of the rules of evidence.  There is also a danger in being what the Americans call an armchair quarterback as to how the rules might better be utilised to promote testimony where there has been a full, fair and transparent opportunity for the witness to refresh memory.  In fairness, part of the problem is that while these witnesses did not do well in some aspects of the most recent trial, they were, to an extent, hardly any better in the first trial.  It might fairly be said that part of this might come back to the criticism advanced in these submissions by those representing the accused that statements taken from some of these witnesses were less than adequate.  There is no perfect solution but measuring the assessment of whether the accused could get a fair trial based on the performance of the witnesses at the most recent trial, ultimately I am of the opinion that they can get a fair trial.

Public interest in the disposition of the charge

102.The next issue is the public interest in the disposition of the case.  In the present context that gives rise to a number of issues.  The first of these issues is the seriousness of the charges levelled against the accused.

Seriousness of the charges

103.In my opinion, the conduct alleged against the accused, if proved, reveals a serious attack on an important part of the economic system in Hong Kong.  That economic system depends in substantial part on the operation of publicly-listed companies.  Unless the system of public companies is properly regulated and honestly conducted then those who invest in this economic system are at least less likely to do so.  So much of the Hong Kong mode of economic activity depends on our reputation as an international financial centre.  That reputation is underpinned by proper regulation and the honesty of those who are involved in the market.  The Hong Kong model for proper regulation of publicly listed companies requires companies and those connected with the companies to honestly relate to the regulator market-relevant information and information about the operation of the companies.  In making critical economic and financial decisions, shareholders depend on the regulator doing its job.  That job cannot be done unless regulator receives honest information from those concerned with the operation of companies.  Shareholders depend on honest information being given to them by the companies in which they hold shares.  In the instant case, the conspiracies alleged are agreements to do acts which, in my judgement, have at least the potential to do great harm, not only to the economic interest of the publicly listed company through dishonest conduct and to interfere with the regulator’s ability to conduct an honest and efficient market in the sphere of publicly listed companies.  The wider consequences for the economic activities represented by the conduct of publicly listed companies is an important component of the seriousness of these offences.  The sums involved are relevant in that it demonstrates that the charges are not penny-ante charges.  The seriousness derives from the economic context which is a context so vital to Hong Kong.  That context may be different in other places.

104.There was a submission that after the failure of critical components of the deal such as the refusal by the New Zealand authorities to permit the sale of the dairy farms was, while disappointing, not the end of the story.  The submission is that the company has rearranged the deal in a manner which does not require further shareholder approval and is still a deal in the interests of the company.  Allied to that is a submission that nobody lost anything in this deal.  I regard those submissions as wishful thinking.  The suggestion that to leave the matter to the current civil proceedings would mean that the accused would not “get away with it” makes a number of assumptions about the civil proceedings.  That submission I also regard as wishful thinking.

105.A relevant measure of the seriousness of this offence can be gleaned from the sentences imposed by Anthea Pang J (as Anthea Pang JA was then) at the first trial.  There are two points about the sentence itself.  First of all, the Schedule 6 to the Criminal Procedure Ordinance permits the trial judge on a retrial to impose a sentence which is different to that imposed at the proceedings which were the precursor to the retrial.  In the event that the trial was to further proceed, it would, in law, be the continuation of the retrial.  Had this case gone to its conclusion then I would have taken into account the reasoning and outcome in terms of sentence at the first trial.  However, I could not rule out a different sentencing approach.  The second point is that it would be appropriate to consider whether the effluxion of time and the stress of having undergone further proceedings might, to an extent, mitigate the penalty which might be imposed.  A sentence which did not take that into account what, in my opinion, be a sentence which was imposed contrary to settled sentencing principles.

106.While I consider the sentence to be a relevant measure of the seriousness of the offence, I do not consider it is the only measure.  Sentences imposed for trafficking in substantial quantities of dangerous drugs or the only sentence which could be imposed for murder reflect the seriousness of those crimes.  Equally, the public interest in dealing with crimes and the nature of those which are the subject of the indictment is not measured by the sentence only.  There is a public interest in ensuring that if, after a fair trial according to law those who act (or conspire to act) dishonestly in the context of the economic activity which underlies the indictments in the present case will be convicted and will be punished.  The seriousness of the conduct in the present case must also be measured against the potential impact to the economic system upon which Hong Kong depends.

Strength of the prosecution case

107.The next issue is the strength of the case in support of the charges levelled against the accused.  The prosecution assert that its case is in robust health.  Those representing the defence contend that for two reasons, this is not so.  The first is to incorporate the submissions on the intended no case to answer submission.  In short, on this basis, it is contended that there are fatal flaws in the prosecution case.  The second basis is that the inability of witnesses to remember key details substantially weakens the prosecution case.

108.Subject to one specific consideration, the prosecution case on the basis it was presented by the prosecution is well capable of being accepted by the jury.  That was true during the retrial and on the premise that essentially the same case was presented again on a further trial, that would remain true.  The specific consideration concerns the ability of some of the witnesses to recall aspects of the case.  As I have already noted, the defence make great play of this point.  My own assessment is that the core of the prosecution case upon the basis it was presented is clearly there for a jury to consider.  I think that as presented, the jury could well convict.  As I have already noted, many of the complaints about the inability to remember are as to matters of detail and are not matters at the core of the prosecution case.  I think that it is likely that if the same case was presented a properly-directed jury might well convict.  However, I perfectly recognise that it would be open to the jury, applying the directions they would receive on the burden and, perhaps more importantly, the standard of proof, that they could acquit.  I do not take the injunction in the authorities that a Court should consider the strength of the prosecution case to mean that only “sure-win” prosecution cases would be eligible for further trial.  There are two reasons for that.  The first is my own experience as advocate and judge is there is pretty close to no such thing as a “sure-win” prosecution case.  The second reason is that to refuse to permit basis to proceed upon the basis that there is at least the possibility that the jury may acquit having heard the whole of the case (including, possibly, the testimony of the accused and witnesses called on their behalf) would be to abrogate the responsibility to place cases on indictment before a jury.  I can certainly see that there will be clear cases where there is a technical case to answer and nothing but wishful thinking on the part of the prosecutor where it would be wrong to permit such a case to proceed. The present case is not “sure-win”.  On the basis of the present prosecution presentation that case is not a technical case built on nothing but hope and prayer.  I think it is much stronger than that.

109.The defence say that the case for the prosecution is fatally flawed in a number of respects.

110.The written submissions on the part of the accused that there was no case to answer were delivered in advance of the end of the prosecution case.[71]  Given the breadth of those submissions, it was appropriate to do this realising that some adjustment may need to be made to meet the reality of the situation.  Some of the submissions could not, on any view, be considered to be “no case” submissions.  Given that the prosecution case has not actually reached a stage where a submission of “no case” could be made the only basis upon which the submissions incorporated by reference in the advance “no case” submissions made by the accused is if on the state of the evidence there is no way that the accused could ever be convicted of these charges.  In the present set of submissions, those representing the accused place the Court in a difficult position.  The submission made by those representing the accused is:[72]

“Given the fatal flaws (both legally and factually) in the case advanced by the Prosecution in relation to each count on the present indictment, it is submitted that it is not in the interest of justice for a further trial to be held. In order to reach this conclusion, the Court does not have to provide a detailed ruling as if determining the issue of a case to answer. But there is an obligation on the Judge who has presided over a 5 month trial to factor into his decision whether to permit a second re-trial his assessment of whether the conduct of the re-trial has exposed significant flaws in the indicted case.”

The same point was made in oral submissions in support of the defence case.  With great respect to the authors of those submissions, it is difficult to understand what the Court is being asked to do.  The submissions contend that the Court “does not have to provide a detailed ruling as if determining the issue of a case to answer.”  The Court is nevertheless asked to determine whether the defence have exposed significant flaws “in the indicted case” and factor that into the decision as to whether to permit a further trial.

111.Many, but not all, of the submissions as to whether there was a case to answer were also made to the Court of Appeal on the appeal against the convictions on the first trial.  Those were rejected. I was told that these submissions were to be made before the Court of Final Appeal but things never got that far.  Early on in the retrial, the Court was told that the submissions which were intended to be made before the Court of Final Appeal would be made at the end of the case.

112.As to those arguments address to the Court of Appeal and rejected, a highly simplified version of the argument is as follows.  The offence of conspiracy to defraud is while not of itself bad for legal certainty,[73] it is capable in either the presentation of the prosecution case or in the manner of drafting the indictment or both to be bad for legal certainty.  The contention of those representing the accused is that both the indictment and the presentation of that indictment in the present case is bad for legal certainty.  The essence of the complaint is that in the context of the present circumstances, the only way that the prosecution case would not fail that test is if the terms of the Listing Rules qualified the nature of the false representations.  I am not sure that I am in strict law bound by the views of the Court of Appeal but I am in respectful agreement with the analysis of the Court of Appeal on this topic.  It seems to me that the arguments on this topic presented by those representing the defence introduce an air of unreality into what I consider to be a comparatively straightforward prosecution case.  Those representing the accused have invoked Lord Steyn’s observation that in the law, context is everything.  I agree.  In the specific context of this case as it was presented the presentation and the indictment do not violate the strictures which require legal certainty.

113.The submissions also argue that the directions of the learned trial judge in the first trial as to the continuing effect of the Commission Sharing Agreement entered into between, amongst others, the 1^st Accused and the 2^nd Accused.  I imply no disrespect to the Court of Appeal in noting that the Court agreed with Anthea Pang J as to the efficacy of the Commission Sharing Agreement without supplying elaborate reasons.  I agree with the conclusion of the Court of Appeal, although if I was called upon to rule upon the topic, I would consider myself bound to give somewhat more elaborate reasons.

114.The other major topic upon which it is said that there are fatal flaws in the prosecution case is the nature of the financial figures placed in the Circular to Shareholders which is the subject of the 1^st and 2^nd Charges on the indictment.  The case for the prosecution is that what was required and what Ms Katherine Chan, as chairman of 462 expected was that the figures would be historical figures.  The case for the prosecution is that on a proper construction of the Listing Rules the relevant figures had to be historical as opposed to projections as to the future.  The figures had to be true.  The responsibility for the provision of those figures was the potential vendor of the farms and the owner of those farms was to be a company which was wholly owned by the 2^nd Accused. The prosecution case was that the figures were supplied by the 2^nd Accused and the 3^rd Accused.  The conspiracy alleged was that the figures were false figures.  The case for the defence was these were hypothecated figures because the company owned by the 2^nd Accused had never traded and therefore the figures could never have been understood as historical figures.  Further, the case as put to the relevant accounting witnesses was that they perfectly well knew that the relevant figures were not historical figures of financial performance and by implication that Ms Katherine Chan as chairman knew that.  In other words, nobody was defrauded.  Everybody who was relevant to the process knew the true nature of the figures.  As an issue of fact, this case could properly be put to a jury and they may, applying the burden of proof and the standard of proof, conclude that there is at least a reasonable doubt about the position.  However, as presently advised, it would be impossible to say that the case as presented represented a fatal flaw.  It will be readily apparent that this is a serious oversimplification of the issues which arise but, in my judgement, that is what they come to.  For what it is worth, my prediction based on the evidence as it was presented in the trial over which I presided is that the jury would most likely have found in favour of the prosecution.  I certainly could not say that this was a weak case or a case where acquittal was inevitable.

115.The next major issue which was in the process of being litigated at the time that the jury was discharged concerns the issue of whether there had been unauthorised transfer of the NZ$51.6 million to the 2^nd Accused and, in turn, in part to the 1^st Accused.  The money in question was part of the funds held in the trust account of the New Zealand law firm of Knight Coldicut who acted for 462.  These funds had been raised by 462 and were intended, in due course, to pay the companies of the 2^nd Accused for the interest that was held and was to be injected into 462.  The interest that 462 was to acquire was, in two tranches, 20% and then 80% of a company holding the dairy farms which were to be acquired by that company.  The issue of whether the payment was unauthorised was circumstantially relevant to the prosecution case that the 1^st Accused and the 2^nd Accused were acting dishonestly.  I do not think that the evidence on this topic was absolutely critical to the proof of that matter but it certainly, if true, strengthened the prosecution case to a very substantial degree.  If the jury considered that the payment was authorised then not only did that potentially damage the prosecution case, but may also have strengthened the defence case that at all times there was no dishonesty.  On the prosecution case, much depended on the construction of the documents.  At the time that the jury was discharged the issue as to whether the payment was an authorised was being litigated.  It would be impossible for me on the present state of the evidence to assess the likely outcome of this aspect of the case.  What I am sure about is that it was and is likely to be on any future trial quintessentially a jury issue.

116.So far as Count 5 is concerned, in the “no case” submissions there are in effect two submissions.  First is that if the 1^st Accused has no case to answer in relation to Counts 3 and 4 then the 1^st Accused would be not guilty of Count 5.  That proposition is unanswerable.  That would be, on any view, a fatal flaw with respect to Count 5.  The second proposition is that the 1^st Accused should never have been charged with money laundering because his criminality is said to be sufficiently covered by the 3^rd and 4^th Counts in the indictment.  The basis for this is the decision of the United Kingdom Supreme Court in R v GH [2015] 1 WLR 2126.  The Supreme Court held that Courts should discourage the use of charges like money laundering where the criminality covered by such a charge covered by other charges.[74]  It is difficult to argue with such a proposition.  However, the conduct the subject of the present charge is, in my opinion, substantially removed from the criminality which generated the property which was unlawfully dealt in by the 1^st Accused.  In my opinion the charge was and remains appropriate.  There is certainly no basis on which whether via a no case to answer submission or otherwise which would justify considering that there is a fatal flaw in Count 5.

Shifting the prosecution case

117.The accused submitted that the prosecution has sought to recast their case in the course of the retrial to address what are characterised as fatal flaws in the indicted case.

118.The accused contend that a defendant is entitled to know the case against him as indicted so he can properly defend himself.  That is unquestionably true but must be understood by reference to the rules of evidence and procedure which govern a criminal trial.  The rules of evidence and procedure seek to ensure that this is achieved in a multitude of ways including reliance on the opening supplied by the prosecution.  In a case such as the present case the importance of the opening cannot be understated.  However, inevitably issues arise in the prosecution case which may cause a change of emphasis.  The authority cited by the accused instances circumstances in which a judge in the summing up tells the jury of a different basis for conviction which was not canvassed in the trial.  In Hau Tung Ying v HKSAR (2011) 14 HKCFAR 453, it was held that in appropriate cases, the judge had the power to consider or direct the jury on the case on a basis different from that presented by the prosecution, provided that this was open on the indictment and the evidence, and the parties were first given an opportunity to address the Court.  Such a situation must be rare and exceptional.  Convictions had been quashed mainly because the defence had not been given the chance to address the Court on the new basis and had thereby suffered a disadvantage or prejudice and an unfair trial.

119.The key issue is notice.  While there are obvious limits to that, the prosecution is entitled to give notice that it intends to adduce further evidence.  Such evidence may conceivably be an attempt to patch up a deficiency in the prosecution case.  There would be issues of notice and timing attendant on giving notice accompanied by such evidence.  It may be that it would be necessary to amend the indictment, but this is by no means always necessary.  However, there may be circumstances where the proposed recasting of the prosecution case is so fundamental that to permit such a course would be to deny the accused a fair trial.  Many of the problems can be ameliorated by notice.  The point that is made here is that there may be such a change has is capable of being ameliorated by notice.  That said the prosecution cannot re-cast its case into something fundamentally different to the case it started out with even if the re-cast case fits within the indictment.  That is not the situation in the present case.

120.The allegation that certain documents produced by the defence in the course of the trial might be forgeries was an issue which have a multitude of dimensions.  What became apparent to me was that as the trial wore on the prosecution appeared to retreat from this allegation.  The problem arose in relation to certain documents which were put to witnesses which were said to come from a specific source connected with the 2^nd Accused.  Towards the end of the trial, the selfsame documents appeared to be capable of being produced from other sources which may have rendered the original assertion somewhat empty.  The assertion by the prosecution, viewed by reference to later developments in the trial, might be seen as falling somewhat flat.  The bigger issue might have been whether or not to mention it to the jury in the course of the summing up.  In planning the summing up, I was torn between not mentioning it at all and directing so as to remove such prejudice as there may have been.  My final decision was likely to have been based on closing submissions.

121.Those representing the accused also complained that the foreshadowing or, perhaps, more accurately, the hinting that further witnesses not presently intended to be called was the recognition of fatal flaws in the prosecution case.  It is necessary to look at the particularised examples to determine whether they

(1)  would have justified interference in the course of the proceedings in the retrial the subject of the discharge of the jury;

(2)  whether in relation to foreshadowed conduct on the part of the prosecution such as the treatment of Mr Navin Aggarwal or Mr Wu Wing Kit as unindicted co-conspirators if it came to fruition in a future trial would be so inappropriate as to justify a refusal of permission to permit a further trial; and

(3)  whether the prosecutorial conduct revealed in the examples would either justify a belief that there would be further misconduct of this type in any future trial placing in jeopardy the fair disposition of the charges in such a trial.

122.Part of the problem is the submissions of the accused do not identify with precision what they perceive the fatal flaws in the prosecution case to which these shifts in the prosecution’s position are supposed to address.

123.At various stages the idea was floated that Mr Navin Aggarwal (a partner in K & L Gates, Solicitors) who have been acting for 462 was a co-conspirator.  As far as I could see, there was no evidence on the papers to support that conclusion.  It may be that the investigators of the case and suspect that both the distance between suspicion and evidence may in the present circumstances be substantial.  On the state of the evidence and the papers at the time of the discharge of the jury, the allegation that he was a co-conspirator was not soundly based.  That there may be other evidence unavailable to the Court which supports this conclusion is possible but there was nothing that I saw which would support that conclusion.  The other issue as far as Mr Aggarwal is concerned is that it is not plain how it might be said that he fitted in to the conspiracy.  It may be that what the prosecution was really saying was they had not called Mr Aggarwal not so much because he was an unindicted co-conspirator but because they did not trust that he would give full and true evidence.  For a good part of the history of these proceedings, Mr Aggarwal was in prison serving a sentence for some very serious defalcations which were not related to the present charges.  Although it was not made plain to the Court, there was at least a hint in the prosecution position that Mr Aggarwal was not prepared to cooperate but there was either a belief (or possibly a hope) that he might now be prepared to cooperate and was prepared to be called to explain aspects of the evidence.  This would be upon the basis that he was not an unindicted co-conspirator but simply that he could provide insights into some of the critical transactions.  If there is such a statement in existence or there may be such a statement in existence in the future then it would have to be disclosed and appropriate notice of additional evidence given.  If Mr Aggarwal was presented as an immunised witness on the basis that he was criminally complicit appropriate notice would have to be given of that.  I cannot rule out the possibility that this was simply thinking aloud on the part of the prosecutor.

124.In relation to Mr Wu Wing Kit, he was a solicitor acting for the 1^st Accused and who from time to time provided legal services to the 2^nd Accused, the position is broadly the same.  He had a closer connection with the 1^st Accused and the 2^nd Accused.  There was talk at various times of Mr Wu being a witness.  At the time of the conclusion of the present proceedings by the discharge of the jury, the Court was unaware of the existence of any witness statement.

125.As to the truth of the accounts prepared by Mr Mark Stuart King, in what became known in both the trial and the retrial as the “Tab 11” accounts, the prosecution position has always been that what is at issue is not whether these accounts are true but whether the accounts produced by the 2^nd Accused and the 1^st Accused are false. I would expect that this is the manner in which the prosecution intends to present its case at any future trial.  In my opinion, there is, in any event, a good deal of circumstantial evidence which supports the correctness of the “Tab 11” accounts including the fact that the accounts produced by Mr King for the previous 2 years were accepted without demur as accurate.  Further, it would be open to the jury to infer from the combined evidence of Mr King and the testimony of Mr David Anthony Wiltshire who was head of farm operations at the farms as well familiar with the operation of the farms the subject of the indictments that these accounts were accurate.  However, I agree with the prosecution that the real issue is not so much that as whether the accounts prepared by or on behalf of the 2^nd Accused and the 3^rd Accused are false.  The case for the prosecution was that these accounts have, at best, a tenuous connection with reality.  I can see no basis on which the prosecution would not be permitted to present their case upon that basis at any future trial.

126.The next issue in the examples given of the prosecution unacceptably shifting its case concerns the issue of whether the transfer of the NZ51.6m was “unauthorised”.  It has to be remembered that this transfer is not itself the subject of any of the counts on the indictment. It is being used by the prosecution to demonstrate dishonestly on the part of, particularly, the 1^st Accused and the 2^nd Accused and the fact that they continued to work together to, in effect, defraud 462.  The assertion that there are issues with the provenance of certain documents produced and relied on by the defence to support the conclusion that there is at least a reasonable doubt as to whether or not the transfer was unauthorised is, in my opinion, a fairly minor aspect of the case.  As I have indicated earlier under the heading of issues concerning the shift of the prosecution case, it seems to me that the “provenance” argument had, by the time of the discharge, fallen fairly flat.  I apprehend the case for the prosecution on this topic to be substantially broader than authorisation established by the documents produced by the defence including the email of Mr Graham Chin.  Indeed, if the sum total of the prosecution case was the doubtful “provenance” of those documents then I would guess that the prosecution case would be close to doomed to failure.  I apprehend the core of the prosecution case was that that the contractual documents to which, amongst others, the 2^nd Accused was a party which could be interpreted as not permitting such a transfer at the particular time that it was done and that, accordingly, the transfer was unauthorised.  The case for the prosecution is that on the contractual arrangements to which, amongst others, the 2^nd Accused was a party, certain preconditions had to have eventuated at the time of the transfer of any money and those preconditions did not exist.

127.The final example given about the characterisation of Mr Nick Cross and Mr Kerry Knight as untruthful witnesses and were somehow implicated in the unauthorised transfer of the NZ$51.6 million was an issue which was in the process of unfolding when I discharged the jury.  Indeed, Mr Knight was testifying at the time that I intervened to discharge the jury.  It follows from this that it is very difficult to say anything definitive about this issue.  Certainly, I gained the impression that there was (1) no evidence in the testimony of Mr Cross which could justify the conclusion that he was involved in a dishonest way in the creation of documents to give effect to the transfer of the money.  It is, of course, one thing for a solicitor in the position of Mr Cross to draft documents (or assist in their drafting) without being complicit in any dishonesty alleged to be involved in the release of funds it on in reliance on those documents and being complicit in an unauthorised release; and (2) there was no real suggestion that this was his position.  In my view, any suggestion by the prosecution that he was so complicit would inevitably have fallen flat and would have been dismissed by the jury out of hand.  However, I must qualify that observation by saying that not all of the evidence was in at the time.  As to Mr Knight, we had only heard a fraction of the evidence that he was going to give.  The characterisation of Mr Knight as a “cowboy” was, in my opinion, at least a possibility, but it was way too early for any concluded opinion to be formed.  The argument under this head concludes with the assertion “The Prosecutor does not even know of the material in the unused that demonstrates that Mr Knight was acting lawfully and upon instructions.”  Given the state of the evidence, I think the best comment I can make on that is that it would be necessary to wait and see.

128.None of the foregoing points under this heading examples provide any basis upon which it would be appropriate for this Court to refuse permission for a further trial to be held.  In my opinion, they do not demonstrate that the prosecution had a propensity to adopt reckless and untrue positions when faced with a possibly fruitful assault on the prosecution case.

The “in terrorem” issue

129.In my opinion, this is a non-issue.  If there is a witness statement taken from Mr Wu Wing Kit that would be one thing. It would then be necessary to see what that statement says.  Finally, the appointment of the undersigned to hear any future trial of this indictment depends on whether or not there is an appointment under section 10 of the High Court Ordinance, Cap 4.

CONCLUSION

130.In light of the facts and circumstances which operate in this case, there is no basis upon which the Court could refuse permission for this matter to proceed to a further trial on the present indictment.  To the extent that it is conceptually separate to the refusal to permit the intended trial to proceed, I refuse to order a stay of proceedings.  In the circumstances, it is not appropriate to make any order for costs on the hearing of these proceedings.

Ms Charlotte Draycott SC leading Mr Mitchell Neil S, Mr Li Chun Ngai Martin, on fiat and Miss Ng Oi-lam Joycelyn SPP of the Department of Justice, for HKSAR

Mr Tim Owen QC leading Mr Tsoi Y M Benson, instructed by Boase Cohen & Collins, for the 1^st accused

Mr Ian Winter QC leading Mr Cao Yuan Shan and Ms Betty Chiu, instructed by Haldanes, for the 2^nd accused

Mr David A S Khosa, instructed by Hobson & Ma, for the 3^rd accused

[1] Joint Defence Submissions, §2(1).

[2] Joint Defence Submissions, §2(1).

[3] Joint Defence Submissions, §2(2).

[4] These are taken directly from the Joint Defence Notice of Application for Permanent Stay of Proceedings dated 19 June 2021.

[5] Joint Defence Submissions §20 & 21.

[6] Joint Defence Submissions, §22.

[7] Joint Defence Submissions, §19 & 23.

[8] Joint Defence Submissions, §24 & 25.  It will be apparent that I have slightly edited those paragraphs.

[9] Joint Defence Submissions, §26.

[10] Joint Defence Submissions, §27 & 28.

[11] Joint Defence Submissions, §29.  A Mareva injunction is a form of injunction derived and developed from Mareva Compania Naviera SA v International Bulkcarriers SA, [1980] 1 All ER 213.

[12] Joint Defence Submissions, §30 & 31.

[13] Joint Defence Submissions, §33 & 34.

[14] Joint DefenceSubmissions, §35 & 36.

[15] Joint Defence Submissions, §37.

[16] Joint Defence Submissions, §38 & 39.

[17] Joint Defence Submissions, §40.

[18] Joint Defence Submissions, §42.

[19] Joint Defence Submissions, §43 & 44.

[20] Joint Defence Submissions, §45.

[21] Joint Defence Submissions, §46 & 47.

[22] Joint Defence submissions, §43 (above).

[23] Joint Defence Submissions, §48.

[24] Joint Defence Submissions, §49.

[25] Joint Defence Submissions, §50.

[26] Joint Defence Submissions, §51.

[27] Joint Defence Submissions, §52.

[28] Joint Defence Submissions, §53 & 54.

[29] This submission cites HKSAR v Hau Tung Ying (2011) 14 HKCFAR 453 in support of the contention.

[30] Joint Defence Submissions, §55 & 56.

[31] Joint Defence Submissions, §57.

[32] Appendix II is part of the Circular to Shareholders which is required under the Listing Rules. The Circular was exhibited as Tab 10 of the prosecution bundle entitled “Company Matters (Pt. 1)”.  The appendix commences at internal page 202 of that document.

[33] Joint Defence Submissions, §68.

[34] Joint Defence Submissions, §72.

[35] Joint Defence Submissions, §75.

[36] [2010] 1 Cr App R 27, §4.

[37] Bowe and another v Rwas followed in the Court of Appeal in HKSAR v Li Yanhong (No 2) [2016] 1 HKLRD 946.

[38] (2007) 10 HKCFAR 632, §51.

[39] Prosecution Submissions, §17.

[40] Prosecution Submissions, §26 (b) and (c).

[41] Prosecution Submissions, §26 (e).

[42] A fourth person (Ms Miranda Ng) was also accused in the committal proceedings. The learned Magistrate discharged her.  2^nd Accused was discharged on the same charge as Ms Ng.

[43] Mr Wu was the solicitor acting for 1^st Accused.  He also advised 2^nd Accused from time to time.

[44] DCCC 1022/2012.

[45] [2016] 3 HKLRD 533.

[46] CACC 172/2016.

[47] The chronology supplied by the accused contends that at the time of their release on bail the accused had served 2 years and 8 months in prison.

[48] (2019) 22 HKCFAR 248.

[49] [2019] HKCFA 51, §11. These were the taxed costs in the original trial in the Court of First Instance; of the applications for leave to appeal to the Court of Appeal and in the appeals to that Court; of the applications for bail pending appeal to that Court; of the applications to the Court of Appeal for certification; of the applications to the Appeal Committee for leave to appeal; and in the appeals to this Court, together with a certificate for three counsel.

[50] Section 83E(1) is, for all practical purposes the same as the power vested in the English Court of Appeal under section 7 of the Criminal Appeal Act, 1968.

[51] There is a power to order a retrial in relation to appeals against conviction by a Magistrate under section 119(1)(d) of the Magistrates Ordinance, Cap 227. Section 119(1)(d) is differently worded but, in practice, the criterion for the exercise of power to grant a retrial is precisely the same.

[52] Section 17(2) provides: “For the purpose of disposing of an appeal, the Court may exercise any powers of the court from which the appeal lies (including the power to order a retrial), or may remit the case to that court.”

[53] HCCC 309/2019, [2021] HKCFI 1751, Judgment dated 18 June 2021, §29.

[54] [2010] EWCA Crim 3, [2010] 1 Cr App R 27, §27.

[55] [2010] EWCA Crim 3, [2010] 1 Cr App R 27, §46.

[56] (2020) 23 HKCFAR 169, §9. Footnotes omitted.

[57] [2021] HKEC 3139, [2021] HKCFA 26, FACC 5/2021, §31.

[58] [2015] EWCA Crim 1307, [2016] 1 Cr App R 7, §38.

[59] [2015] EWCA Crim 1307, [2016] 1 Cr App R 7, §40.

[60] [2015] EWCA Crim 1307, [2016] 1 Cr App R 7. §41.

[61] [2015] EWCA Crim 1307, [2016] 1 Cr App R 7, §63.

[62] See also Article 11(2)(c), Hong Kong Bill of Rights Ordinance which provides the same guarantee.

[63] (1989) 168 CLR 23, 60 & 61.

[64] [2003] UKHL 68, [2004] 2 AC 72, §24.

[65] Cases include: Spiers v Ruddy [2007] UKPC D2, [2008] 1 AC 873; Burns v HM Advocate (HM Advocate General for Scotland intervening) [2008] UKPC 63, [2009] 1 AC 720; HKSAR v Kissel (Stay: Media) [2011] 3 HKLRD 1, [2011] HKEC 439; HKSAR v Liang Yaoqiang [2021] HKEC 3139, [2021] HKCFA 26.  It has been so followed in the civil context as well:  Moore v Council of the Law Society of Scotland [2015] 12 WLUK 780.

[66] (2001) 4 HKCFAR 133, 150.

[67] (2001) 4 HKCFAR 133, 151.

[68] (at pp 74-75).

[69] (2020) 23 HKCFAR 169, §9 (1) & (3).

[70] There were multiple repetitions over those box files but that does not diminish the point.

[71] As it turns out, these were delivered well in advance of the projected end of the prosecution case.

[72] Joint Defence Submissions, §54.

[73] A contention that the charge itself is bad for legal certainty would certainly fail in the High Court is because this Court is bound by the decision of the Court of Final Appeal in Mo Yuk Ping v HKSAR(2007) 10 HKCFAR 386, §81 in which it was held that the offence of conspiracy to defraud did not violate the doctrine of legal certainty.

[74] [2015] 1 WLR 2126, §49.