HKSAR v CHEN KEEN (alias JACK CHEN) (陳克恩) (D1)

FAMC No 35 of 2021

and FAMC No 1 of 2022

[2022] HKCFA 6

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NOS 35 OF 2021 and 1 OF 2022 (CRIMINAL)

(ON APPLICATIONS FOR LEAVE TO APPEAL

FROM HCCC NO 309 OF 2019)

____________________

____________________

________________________

REASONS FOR DETERMINATION

________________________

Mr Justice Lam PJ:

1.  The applicants in these applications were charged with two counts of conspiracy to defraud in respect of the acquisition of some farms in New Zealand by a listed company in Hong Kong.  They are the 1^st and 3^rd accused in the criminal proceedings.  The details of the alleged conspiracies were set out in the judgment of this Court in HKSAR v Chen Keen (2019) 22 HKCFAR 248.  A retrial was ordered by this Court after the successful appeals by the accused against their convictions in an earlier trial in 2016.

2.  The retrial took place before Deputy High Court Judge Bruce SC in 2021.  In the course of that trial, the judge acceded to the request of the 2^nd accused to “invite” the prosecution to call a witness, a New Zealand lawyer whose firm acted for the listed company at the material time.  In light of that decision, the prosecution also called another lawyer from that firm.  In the course of the testimony of this other lawyer, he made references to the accused having previously been convicted.  This took place on the 57^th day of the trial.  By virtue of such disclosure to the jury, the judge found that there was substantial prejudice to the accused which could not be remedied by direction.  He therefore discharged the jury on 16 June 2021.     

3.  The accused then made applications to stay the criminal proceedings on the ground that it would be vexatious, unjust, oppressive and contrary to the interests of justice to continue with the trial.  In the alternative, the stay was sought on the basis that it would be an abuse of the process as a fair trial is not possible and/or that it would be an affront to the court’s sense of justice to try the accused for a further time[1].

4.  On 30 November 2021, the judge ruled against the stay applications.  The charges against the accused are now scheduled to be tried afresh before another jury in May 2023.

5.  The applicants seek leave to appeal against the judge’s refusal of a stay on the basis of substantial and grave injustice.  They contended that there were serious legal errors and a departure from accepted norms in the decision of the judge.  The 1^st accused is represented by Mr Owen QC (leading Mr Tsoi) whilst the 3^rd accused appeared before us in person.  The applications were opposed by Ms Lam SC (leading Ms Ng and Mr Li) acting for the prosecution.

6.  After hearing submissions, we dismissed the applications.  We now set out the reasons for our Determination.  It was our conclusion that this Court has no jurisdiction to entertain the intended appeals. 

7.  As the applications were made in respect of the decision of a judge of the Court of First Instance in a criminal cause or matter, this Court’s jurisdiction is circumscribed by Section 31(b) of the Hong Kong Court of Final Appeal Ordinance Cap 484 (“HKCFAO”).  Under that sub-section, this Court may only entertain an appeal in a criminal cause or matter from a final decision of the Court of First Instance (not being a verdict or finding of a jury) from which no appeal lies to the Court of Appeal.

8.  The applicants contended that the refusal of a stay is a final decision as there is no avenue for appeal against such decision to be brought to the Court of Appeal.  Counsel submitted that the decision was a determination of a crucial issue that went to the root of the criminal trial.  It was said to be a final decision because if this Court overturned the decision of the judge, it would finally determine the criminal proceedings[2]. Reliance was placed on this Court’s entertaining of appeals against the grant of a stay of criminal proceedings by a judge of the Court of First Instance in other cases and it was submitted that Section 31 should not be construed as having the effect that a decision would be “final only in relation to one of the parties, but not the other”[3].

9.  Counsel accepted that the issue in the present applications was not about whether the accused could receive a fair trial[4]. Counsel summarized the case of the 1^st accused as follows:

“The complaint is that it is not in the interests of justice to try him any further, taking into account specific matters such as hardship, oppression and double jeopardy.”

Such contention was based on the test for determining whether an appellate court should in the interests of justice order a retrial after quashing a conviction.  This Court has previously heard appeals against orders for retrial made by the Court of Appeal[5].

10.  Relying on the judgment in R v Bell[6], counsel said that the same test is applicable to the refusal of a stay in the present instance.  He further argued that the judge had not properly applied that approach.  This formed the backbone of his other arguments on substantial and grave injustice.

11.  The 3^rd Accused did not advance any written submissions on jurisdiction. At the hearing he indicated that he would adopt the submissions of counsel for the 1^st Accused on this issue.  He also urged us to adopt a wide construction of Section 31(b) to include the refusal of a stay as a “final decision”.

The refusal of a stay is not a final decision

12.  The authorities on orders for retrial when a conviction is quashed[7] cannot assist the accused in establishing this Court’s jurisdiction to entertain their intended appeals in the present case.  An appeal against an order for retrial made by the Court of Appeal is governed by Section 31(a) of the HKCFAO.

13.  An order for retrial would have been made by the Court of Appeal under Section 83E(1) of the Criminal Procedure Ordinance Cap 221 (“CPO”) after quashing a conviction.  In such instance, a full criminal trial would have taken place resulting in a guilty verdict by a jury and an appeal would have been brought to the Court of Appeal against such conviction.  The decision by the Court of Appeal to quash the conviction and the making of the order for retrial would be final in the absence of any further appeal to this Court.  If the retrial results in conviction and an appeal is brought to the Court of Appeal against that second conviction, the merits of the order for retrial could not be revisited.  As submitted by Ms Lam, the order for retrial is part of the order made by the Court of Appeal in the final disposal of that particular appeal.  Hence, it is “a final decision” for the purposes of Section 31(a). 

14.  In contrast, the matter before the Court of First Instance was the trial of the accused and the refusal by the judge to grant a stay of the criminal proceedings in the present case did not dispose of the matter.  It is thus different in nature from an order for retrial made by the Court of Appeal upon the quashing of conviction.  It is an order made before the criminal trial had run its full course.  The judge discharged the jury when the prosecution had not yet closed its case.  The trial had not even reached the stage of the jury’s deliberation.  In the absence of any stay, the usual course is to continue with the trial before another jury.   

15.  Further, the refusal of a stay is not final because the merits of the decision could be reviewed by the Court of Appeal.  Whilst it is not possible to bring an immediate appeal to the Court of Appeal against the refusal of a stay by a judge of the Court of First Instance in a criminal trial, the decision can be challenged later in the Court of Appeal if the accused were eventually convicted.  An appeal against a conviction can be brought on the ground that the trial should have been stayed, see R v Henworth[8]; R v Bryne[9]; R v Benguit[10]; R v Bell[11]; R v Burton[12]. This was held to be the correct procedure by the English Court of Appeal in Attorney General’s Reference (No.1 of 1990)[13]which was endorsed by the Judicial Committee of the Privy Council in an appeal from Hong Kong[14].  Since then, this practice has consistently been followed in this jurisdiction.  Recently, the merits of a refusal to stay criminal proceedings on the ground of double jeopardy was considered by this Court in HKSAR v Fu Man Kit[15]in the context of an appeal against conviction after an unsuccessful intermediate appeal.

16.  This Court, sitting as the final court of adjudication in Hong Kong, would not entertain an appeal which has the effect of circumventing a potential appeal to the Court of Appeal and frustrating the legislative policy which underlies our criminal appeal regime.

17.  The criminal appeal regime in Hong Kong is primarily governed by Part IV of the CPO and the criminal jurisdiction of the Court of Appeal is set out in Section 13(3) of the High Court Ordinance Cap 4.  The prohibition against an immediate appeal is dictated by the policy against fragmentation of the criminal process.  An interlocutory challenge to a decision made in the course of a criminal trial, if permitted, would result in the fragmentation of the criminal process which would inevitably bring disruption and delay to the final disposition of a criminal matter, see Yeung Chun Pong v Secretary for Justice[16]. To safeguard against such disruption and to foster prompt disposal of criminal matters, our criminal appeal regime does not provide for interlocutory appeals to the Court of Appeal.  Instead, erroneous judicial decisions in the course of a trial could and should be corrected by way of appeal against conviction.  Appeals in criminal matters to the Court of Appeal are thus primarily restricted to appeals against convictions and sentences, see Sections 82 and 83G of the CPO.  If an appellant is aggrieved by the judgment of the Court of Appeal in such an appeal, subject to leave being granted, a further appeal can be brought to this Court under Section 31(a) of the HKCFAO.

18.  Consistent with the policy against fragmentation and role of this Court as the court of final adjudication, Section 31(b) on its proper construction does not permit an accused to pursue a direct appeal to this Court in respect of a decision of a trial judge when the trial has yet to be completed and the merits of the decision could potentially be reviewed in the Court of Appeal in an appeal against conviction.

19.  The only exception is a reservation on a point of law to the Court of Appeal under Section 81 of the CPO[17]. However, it was rightly held by the Court of Appeal in Re Judge’s reservation (No.1) of 1994[18]at [10] and [11] that such a reference should only be made in the most exceptional circumstances as it was not the legislative intent that the continuity of trials should be interrupted by references under Section 81.  The Court of Appeal also indicated that if the point of law did not appear to the court to be one which ought to be consider at that stage, it would decline to do so and direct the trial to be continued.

20.  If the Court of Appeal deems fit to determine a point of law so reserved, it is possible for an appeal to be brought to this Court against a judgment of the Court of Appeal given on the point of law under such reservation, see HKSAR v Mak Wan Ling (No 1)[19].  As explained by Fok PJ, in such instance, the appeal to this Court would be brought pursuant to Section 31(a) in respect of a final decision of the Court of Appeal.  At [19], it was highlighted that:

“It will not be open to the applicant to argue [the point of law] to the contrary either at her retrial or on any intermediate appeal to the Court of Appeal in the event she is convicted.”

The determination of the point of law by the Court of Appeal is a final disposal of the reference which is the only matter before that court.

21.  In light of the above analysis, the criterion for determining whether a decision of the Court of First Instance in a criminal cause or matter is amenable to a direct appeal to this Court has to be considered as a whole.  In order to come within the scope of Section 31(b), the decision of the Court of First Instance has to be one in respect of which there is no possibility for the merits of that decision to be reviewed by the Court of Appeal whether by way of immediate appeal against that decision alone or by a future appeal against the conviction of the person affected by that decision.

22.  As discussed above, unlike the situation in HKSAR v Mak Wan Ling (No 1), the applicants in the present case would be able to argue in the Court of Appeal that the decision of the judge was wrong in the context of possible appeals against conviction (if any).  If they were aggrieved by the decision of the Court of Appeal in such appeals, they could seek leave to appeal to this Court based on the jurisdiction conferred under Section 31(a).

23.  The position is different if a stay is ordered by the Court of First Instance.  In that event, the order for a permanent stay disposes of the criminal matter before the court finally.  Such was the situation in the two instances where appeals were entertained in this Court in HKSAR v Lee Ming Tee[20]. Since it is not possible for any appeal to be brought by the prosecution to the Court of Appeal for the merits of the stay to be reviewed, there is no circumvention of an intermediate appeal.  Since there would not be any trial unless the stay is overturned, the bringing of the appeal does not constitute a fragmentation of the criminal process. 

24.  Counsel submitted that such distinction contradicts the “application approach”[21]. By that approach, one examines the nature of the application to see whether the order or judgment made upon such an application would, whether it fails or succeeds, dispose of the whole action or resolve a crucial issue at the trial.  However, the application approach is not invariably determinative of the question whether a decision is final.  In the civil context, there are exceptions as provided under Order 59 Rule 21 of The Rules of the High Court Cap 4A, see Champion Concord Ltd v Lau Koon Foo (No 2)[22]. Thus, in respect of a summary judgment application or an application for striking out, a decision would be final if the application succeeds but not final if it fails.  In criminal cases,Section 31(b) of the HKCFAO must operate in the context of our criminal appeal regime discussed above and whether a decision of the Court of First Instance is a final decision from which no appeal lies to the Court of Appeal should be construed accordingly.

25.  Ultimately, as highlighted in Shell Hong Kong Ltd v Yeung Wai Man Kiu Yip Co Ltd and HKSAR v Mak Wan Ling (No 1), the question has to be answered with broad common sense.  Having due regard to the appellate regime under the CPO and the role of this Court as the final court of adjudication, the broad common sense approach espoused in HKSAR v Mak Wan Ling (No 1) does not support permitting a direct appeal to this Court in respect of issues which could properly be canvassed in a potential intermediate appeal against conviction.  

26.  Apart from refusal of a stay, there are other decisions that could be made by a trial judge in the course of a criminal trial which could arguably have an important impact on the further conduct of the trial.  A decision to discharge the jury could arguably have an important impact on the conduct of the trial.  Depending on the circumstances, a decision on an application for adjournment of a trial may also fit the bill.  Likewise, a decision on the admissibility of a cautioned statement can in some cases have important implications for the conduct of a trial.  It is obvious that any review on the merits of these decisions should be conducted after the trial has been completed if necessary in the context of an appeal against conviction.  

27.  We do not see any justification for having a different rule in respect of the refusal to grant a stay by reference to Mr Owen’s submission that it was not a decision made within the trial before the jury.  As mentioned earlier, in the absence of a stay, the normal course after the discharge of a jury due to irregularity is to continue with the trial by empaneling another jury.  In cases where a jury is discharged after the trial has miscarried, it is quite possible for the trial to take place before another jury as soon as possible.  It is fortuitous that the trial in the present case cannot be resumed until next year.  In principle, in connection with the issue we have to address under Section 31(b), we do not find the distinction drawn by Mr Owen to be a valid one.      

28.  As it remains possible for the accused to challenge the decision of the judge in appeals against convictions (if any), there is no inequality between the applicants and the prosecution in terms of the opportunity to appeal against the decision on a stay application.  Mr Owen submitted that such an appeal would be an arid one since by then the accused would have had to go through another trial.  But the same argument can be advanced in respect of a trial which is allegedly tainted by other erroneous interlocutory decisions of the trial judge.  It is the inevitable consequence of the policy against fragmentation.   

29.  In our judgment, the refusal of a stay, like other decisions by a High Court judge on matters affecting the course of a criminal trial, is not a final order for the purpose of Section 31(b).

30.  Counsel sought to draw a comparison with the possibility of an interlocutory challenge to a refusal of a stay by an inferior court by way of judicial review[23]. That was the procedure adopted in George Tan v Judge Cameron[24]in which the Judicial Committee of the Privy Council heard an appeal against the dismissal of an application for judicial review in respect of the decision of a judge of the District Court refusing to grant a stay of the criminal proceedings in that court.

31.  The comparison is not apposite as the decision of a High Court judge is not subject to the supervisory jurisdiction by way of judicial review.  In any event, in applications for judicial review involving interference with criminal proceedings in inferior courts, judges have always paid due regard to the policy against fragmentation and the availability of a remedy by way of appeal against conviction[25]. As shown by some of the cases cited in the footnote, applications for leave to apply for judicial review challenging refusals to stay criminal proceedings have by and large been unsuccessful.  In this connection, it should be noted that after George Tan v Judge Cameron, Section 13(3)(aa) was added to the High Court Ordinance to empower the Court of Appeal to entertain appeals in respect of decisions of the Court of First Instance in such judicial review cases.  Thus, such appeals cannot be brought directly to this Court.     

Not appropriate to grant leave based on the approach of Lai Chee Ying on anterior point of law

32.  In HKSAR v Lai Chee Ying[26] the Appeal Committee held that even though this Court has no jurisdiction to entertain an appeal from a decision which is not a final decision, if the actual decision involved an anterior determination of a question of law which is not subject to being re-opened (because of the lack of possibility of appeal against such decision), the anterior determination could be regarded as a final decision for the purpose of Section 31(b).   

33.  In the present applications, the accused did not seek leave on the ground that the intended appeals raise a question of law of great general public importance and no question of law has been formulated in the Notices of Application of the applicants.  It is therefore not surprising that initially counsel did not seek to establish jurisdiction by reference to the approach discussed in Lai Chee Ying.

34.  Belatedly, in the Reply Submissions[27], counsel for the 1^st accused invited the Appeal Committee to consider the following question as “an anterior point of law worthy of the Court’s determination”:

“What is the correct legal test that should be applied in circumstances where a trial Judge is tasked with determining whether to allow a further trial to take place after the Jury was discharged in the course of a lengthy re-trial?”

35.  Reading that together with the submissions placed before us, the focus of the question was on whether the public interest test discussed in R v Bell is applicable to a case in which the jury was discharged for a reason other than the failure of the jurors in reaching a majority verdict.

36.  We do not find it appropriate to grant leave in the present applications by reference to the anterior point of law approach of Lai Chee Ying.

37.  Firstly, as explained above, unlike the bail decision in Lai Chee Ying, the decision of the judge in the present case can be subject to a potential review by the Court of Appeal in a possible appeal against conviction.  Thus, it is not final and this Court should not pre-empt such potential review by entertaining an appeal at this stage.

38.  Secondly, the applicants did not seek to argue that the judge adopted the wrong test. Instead, the judge acknowledged that R v Bell was relevant but it is said that he failed to apply it properly.  As such, there was no application to the judge to certify this question of law.  We note that the judge was of the view that R v Bell did not establish any hard and fast rule[28] and counsel did not cite to us any judgments of the Court of Appeal which considered this question in the context of a jury being discharged before deliberation.  Also, we did not have the benefit of his view on the alleged divergence of approaches between R v Bell and Jago v District Court (NSW)[29] (on which, counsel submitted, the judge had placed undue weight) and the extent to which the relevant considerations under R v Bell had actually been subsumed in the judge’s assessment of the stay applications.  The substance of the submissions on the merits of the intended appeals was mostly directed towards the application of the test in the circumstances of the present case.

Postscript

39.  Counsel drew our attention to the view of Bokhary PJ (as he then was) in Tsang Wai Ping v HKSAR[30]that it would be a better statutory arrangement to empower the Court of Appeal to grant leave under some circumstances for an immediate appeal to be brought to the Court of Appeal in respect of the refusal by a judge in a criminal trial in the Court of First Instance to stay the criminal proceedings.  Notwithstanding our determination, we see some merit in such proposal.  However, that would be a matter of policy and law reform.  As the law stands, our conclusion is that this Court has no jurisdiction to entertain such appeals.