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

HCCC 2/2019

[2023] HKCFI 247

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 2 OF 2019

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Before:  Hon Anna Lai J in Court

Date of Hearing and Decision:  1 June 2022

Date of Handing Down of the Reasons for Decision:  27 January 2023

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REASONS  FOR  DECISION

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The application

1.This is an application by the defence for a permanent stay of these proceedings on the grounds that a fair trial is not possible as a result of the undue delay and abuse of the process of the court by the prosecution.

2.After hearing submissions on 1 June 2022, I refused the application as I did not find this to be a case in which a fair trial would not be possible or there was an abuse of process which would justify a stay of these proceedings.  I will now give my reasons.

Background

3.I respectfully adopted the following background set out by Barnes J in her decision on the defendant’s first application for a stay of these proceedings in February 2021 [1]:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

4.On 19 January 2021, the trial of BM (the other defendant) in absentia commenced with Inars testified for the prosecution.  The jury unanimously convicted BM of the 2^nd and the 3^rd counts.  BM was sentenced to a total of 17 years’ imprisonment [2].

5.On 29 January 2021, the defendant’s first application for stay of the proceedings was heard and refused by Barnes J.

6.At the Mention hearing on 23 November 2021, the defence confirmed the suitability of a new Ewe interpreter.  The defendant’s trial was subsequently fixed to commence on 1 June 2022.

7.On 20 April 2022, CMH was held.   The prosecution informed the Court that Inas, who was willing to testify, was unable to travel to Hong Kong in June 2022 due to the then prevailing government policy concerning the Covid-19 pandemic.  The prosecution asked for a further adjournment of the trial, while the defence indicated that they would make a second application to stay the proceedings.

8.On 23 April 2022, the defence filed a Motion to apply for a permanent stay of these proceedings.

Grounds of the application for stay

9.Mr Andrew Raffell, counsel for the defendant, provided the following grounds in the Notice of Motion:

(1)  Excessive delay caused by abuse of process.

(2)  Unfairness and unjust treatment of the defendant because of the action and/or inactions of the prosecution in that they failed to make arrangements for the witness lnars to attend court on the 1 June 2022 (which date was set on the 8 December 2021).

(3)  Failure to disclose to the court and the defence until a CMH on 20 April 2022 that Inars would not attend for the trial.

(4)  Premature vacating of the date set for trial without reference to the defence in good time and leading to the defence objections being raised extempore without adequate or proper time to prepare.

(5)  Failure of the prosecution to provide details of what (if any) attempts had been made to ensure lnars attendance.   When such attempts had been made.   When the prosecution became aware that he would not attend.   Why they had failed to inform the court and the defence in good time.

(6)  A failure to comply with Barnes J’s orders on 16^h April 2020 and 29 January 2021 that no more adjournments would be allowed.

The law and applicable principles

10.There is no dispute about the applicable law.  I am grateful to Mr Ken Ng, counsel prosecuting on fiat, who has set out the relevant principles in his written submission as follows [3]:

“The Law-The scope of power of the Stay Application

10.  In HKSAR v Ng Chun To Raymond [4], by referring to the Final Appeal case in HKSAR v Lee Ming-tee [5], the Court of Appeal reiterated that the court’s discretion to exercise the Stay only justified in exceptional circumstances.  Court will not normally intervene the right of Prosecution to demand a verdict except that a fair trial is impossible or in rare cases, the trial of the accused would be an affront to the court’s sense of justice and propriety.  Most important of all, the burden is on the accused to show on a balance of probabilities that no fair trial can be held.  At para.  84:

“The circumstances in which, in the exercise of a court’s discretion, a stay of proceedings will be justified are exceptional.  Those circumstances are explained by Ribeiro PJ in HKSAR v Lee Ming Tee & Anor.  ‘In general,’ he said, ‘if a prosecution is brought, the court’s duty is to try the case’; since ‘generally speaking a prosecutor has as much right as a defendant to demand a verdict ...  on an outstanding indictment, and where either demands a verdict a judge has no jurisdiction to stand in the way of it.  But in exercise of its inherent power to prevent an abuse of its own process, the court has jurisdiction to stay criminal proceedings in two circumstances:

(1) where, notwithstanding the remedial measures which are available to a court to ensure a fair trial, the circumstances are such that ‘a fair trial for the accused is found to be impossible and continuing the prosecution would amount to an abuse of process.’ (emphasis added) That is because ‘the continuation of processes which will culminate in an unfair trial can be seen as a ‘misuse of the court process’ which will constitute an abuse of process because the public interest in holding a trial does not warrant the holding of an unfair trial.’ The burden is on the accused to show on a balance of probabilities that no fair trial can be held.  The basis upon which such applications tend to be mounted include delay, unfair methods of investigation, and pre-trial publicity; and

(2)  in rare cases where, even though a fair trial is available, the court is prepared to grant a permanent stay because there has been an abuse of power of a kind that renders the trial of the accused an affront to the court’s sense of justice and propriety.   An example is the refusal of a court to exercise jurisdiction over an accused who has been unlawfully abducted from another jurisdiction.”

11.  In R v Humphreys [6]

“........a judge has not and should not appear to have any responsibility for the institution of prosecutions; nor has he any power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought.  It is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene.”

12.  In R v Derby Crown Court [7],

“The ultimate objective of this discretionary power is to ensure that there should be a fair trial according to law, which involves fairness both to the defendant and the prosecution.  for.  as Lord Diplock said in R v SANG (1979) 69 Cr.App.R.  282,290; [1980] A.C.  402, 437: ‘...  the fairness of a trial ...  is not all one-sided; it requires that those who are undoubtedly guilty should be convicted as well as that those about whose guilt there is any reasonable doubt should be acquitted.’ ”

The Law-Abuse of process making a fair trial impossible: Delay

13.  The Law in relation to the court's exercise of its power to stay for the reason of delay has been reviewed and approved by Privy Council in Tan v Cameron [8].  It was held:

“The discretion to prevent a prosecution from going to trial should be very sparingly exercised, even where the delay can be said to be unjustifiable, and more so where the prosecution cannot be faulted.  No stay should be imposed unless the defendant shows on the balance of probabilities that owing to the delay he will suffer prejudice to the extent that no fair trial can be held.”

“Moreover, there is no presumption of prejudice in a long delay, and consequently no shifting of the burden of disproving prejudice to the prosecution.  The burden remains with the defendant, and a long delay is only one factor in determining whether or not prejudice has been caused.”

14.  In R v William Hung [9], it was a Stay application in which the applicant argued that there was, inter alia, an undue delay in breach of BOR Article 11(2)(c).   In refusing the Stay application, the Court held that:

“When considering whether or not the delay was undue the court would consider all relevant circumstances but in particular (i) the length of the delay; (ii) the reasons for the delay; (iii) the attitude of the parties; and (iv) any prejudice to the accused.” [10]

When considering the fourth factor, the court went on to say that, “It follows, therefore, that in any determination of the reasonableness of the length of that delay, it must be considered whether in the end the delay has rendered or might render any subsequent trial unfair.” [11]

The court stated that, “A balance must be maintained between the rights of individuals and the overall interest of the community.  There is a community interest in bringing offenders to trial and in having criminal proceedings conducted in an efficient and fair manner.   Nothing more likely to interfere with the community’s respect for the system of criminal justice than to see the criminal process comprised, and transgressors of the law freed, untried, through institutional shortcomings.” [12]

The court further added that, “As well as which, it seems to me, that community interest will grow commensurately with the seriousness of the offence, and therefore the nature of the offence and its significance within the particular jurisdiction will require consideration along with the other factors.   However I also suggest that the weight to be given to this factor must diminish the longer the delay and the less justification the Crown can give for it, since what then needs to be redressed is the balance in favour of the individual’s right.” [13]

Finally, the court refused the stay and said this, “I must therefore, decide, whether in light of all these relevant considerations what I regard as a prima facie excessive delay [14] has in fact infringed the defendant’s right to trial without undue delay.   I do not think so.” [15]

…

Grounds of the Opposition for the Stay

…

19.  …According to Archbold: “Where the prosecution is not at fault in causing the delay, a stay should rarely be granted.” [16]

…

21.  According to Tan v Cameron as stated at para 13 above, delay is not presumed to be a prejudice to the Defendant.  It is the onus on the defendant to prove on the balance of probabilities that owing to delay, he will suffer prejudice to the extent that no fair trial can be held.  …

22.  In R v Dutton [17], it was held that “...a stay should only be employed in exceptional circumstances.   In assessing whether there was likely to be serious prejudice, the power of the judge to regulate the admissibility of evidence, and the trial process, which should ensure that all relevant factual issues arising from delay would be placed before the jury together with the power of the judge to give appropriate directions should be borne in mind.” … ”

Submissions of the defence

11.Mr Raffell submitted that this application was based on undue delay and abuse of the process of the court by the prosecution.  He pointed out that the prosecution have had since 8 December 2021 to make arrangements for the overseas witness Inars to come to Hong Kong.  The prosecution’s late application to vacate the trial dates at the CMH was arguably an abuse of process as no warning was given to the defence, and the court was forced into making a preemptory decision to allow the application to vacate.

12.Mr Raffell referred to the Basic Law Article 87 and BOR Article 11(2)(c) which give defendants the right to a fair trial without undue delay, and submitted that it would be in the public interest and the interests of justice and fairness that a defendant should not have a serious charge hanging over him for a long delayed period.  Though part of the delay had been caused by the Covid-19 pandemic, he said the latest delay had been caused by the inaction of the prosecution and the reluctance of Inas to return to Hong Kong.  There was no strong indication that the trial would ever happen, and he considered that it was highly unlikely that Inas would come to give evidence at the future trial.

13.Mr Raffell also criticized the strength of the prosecution evidence.  He submitted that the CCTV pictures were poor, and the identification of the defendant was made by the witness in very trying circumstances.  He denied that the phone (containing incriminating evidence against the defendant) belonged to the defendant.

14.Mr Raffell submitted that a fair trial would not be possible because of the passage of time.  As a result of the unacceptable delay, Inars could not be effectively cross-examined and the defendant had no realistic prospect of calling witnesses who might have been able to assist his defence.  Mr Raffell also relied on the case of R v Li Wing Tat [18] to argue that the unfair behaviour on the part of the prosecution itself could amount to an abuse of process even where a fair trial might be possible.  He invited this Court to draw the inference of prejudice from the extreme delay of the defendant’s trial.

Submissions of the prosecution

15.Mr Ng pointed out that the 2019 trial was vacated because Inars found it unsafe to come at the time because Hong Kong was socially unstable.  The 2020 trial was vacated because Inars was in India and there was a lockdown there due to the Covid-19 pandemic.  In January 2021, Inars had arrived in Hong Kong and was ready to testify at the joint trial of BM and the defendant.  The defendant’s trial was severed and adjourned due to the sudden unavailability of the Ewe interpreter.  Inars was required to leave Hong Kong immediately after giving evidence in BM’s trial to comply with the conditions allowing him to enter Hong Kong under the then prevailing health policy.  Since then the Judiciary was trying hard to look for a suitable Ewe interpreter.  The current interpreter was not found until 23 November 2021, after which the defendant’s trial was fixed to commence on 1 June 2022.

16.Mr Ng submitted that the June 2022 trial was vacated through no fault of all parties including Inars.  Delay due to the Covid-19 situation and the busy court schedule was not uncommon.  At the time of the CMH on 20 April 2022, the fifth wave of Covid-19 had been hitting Hong Kong seriously.  There was a ban for all non-HK residents to travel to Hong Kong which affected the availability of Inars in the upcoming trial.  With effect from 1 May 2022, non-HK residents were allowed to travel to Hong Kong provided that they were fully vaccinated and stayed in Designated Quarantine Hotel.  However, the prosecution was informed that Inars could not be vaccinated because he was suffering from diabetes.  Efforts to secure his attendance were made including the application for exemption from the relevant authorities.  CCTV link was not a feasible option without MLA.  Given the dynamic situation of the Covid-19 pandemic and the rapidly changing government policies, the prosecution had tried their best to secure Inars’ attendance from overseas and to keep the defence informed of the latest progress.  Mr Ng stressed that Inars has indicated his willingness to come to Hong Kong to testify.

17.Mr Ng emphasized the seriousness of the charges faced by the defendant, and submitted that the evidence against him was strong: the face of the defendant was clearly shown in some of the CCTV footages depicting the events of the kidnapping; in the identification parade Inars positively identified the defendant as one of Kingsley’s kidnappers, and one of the persons who guarded Inars in the detention area; forensic examination of the defendant’s phone revealed evidence that connected him to the kidnappers and the receipt of the ransom.  In the circumstances the individual rights of the defendant should yield to the interest of the community to have a trial against him.

18.Mr Ng submitted that the defendant was on bail since 22 August 2019, the first day of the 2019 trial when Inars failed to turn up.  He also asked this Court to consider the fact that the trial judge could give proper directions to the jury to address the issues arising from the delay.

My consideration

19.The staying of criminal proceedings would only be justified in highly exceptional circumstances.  The ultimate objective of the discretionary power to stay the proceedings is to ensure that there should be a fair trial according to law, which involves fairness both to the defendant and the prosecution [19].  In general, if a prosecution is brought, the court’s duty is to try the case.  But in exercise of its inherent power to prevent an abuse of its own process, the court has jurisdiction to stay criminal proceedings in two circumstances [20]:

(1)  Where, notwithstanding the remedial measures which are available to a court to ensure a fair trial, the circumstances are such that a fair trial for the defendant is found to be impossible and continuing the prosecution would amount to an abuse of process.  The burden is on the defendant to show on a balance of probabilities that no fair trial could be held.  A long delay is only one factor in determining whether or not prejudice to the extent that no fair trial can be held has been caused.

(2)  In rare cases where, even though a fair trial is available, there has been an abuse of power of a kind that rendered the trial of the defendant an affront to the court’s sense of justice and propriety.  The cases in this category would be rare since the public interest lay in the guilt or innocence of the defendant being fairly and openly determined at trial.  Powerful reason must exist for this to be displaced.  The ultimate question is whether all the circumstances specific to the particular case led to the conclusion that proceedings with a trial of the defendant offended the court’s sense of justice and propriety or that public confidence in the criminal justice system would be undermined by proceedings with it or whether it is in the interests of justice that the defendant be tried for the offence with which he was charged.

20.Having considered the historical development of this case and the reasons for the delay, I was of the view that the delay was caused by unexpected events beyond the control of the prosecution.  Both the defendant and the prosecution were not at fault in causing the delay.  There was no misconduct on the part of the prosecution including the overseas witness Inars.

21.In assessing the impact of the delay on the fairness of the defendant’s trial, I have had regard to the following matters:

(1)  The adjournments were not due to any act or omissions by the prosecution or the defendant.

(2)    The prosecution was ready to proceed in January 2021.  The overseas witness Inars was ready to testify at the scheduled trial, indicating that he is someone who would keep his promise to testify.

(3)    Inars has been in contact with the prosecution and has indicated his willingness to come to testify in the future trial.

(4)  As rightly pointed out by Barnes J in her decision on the first stay application, “although the incident happened in 2017, this is not a case that would rely purely on memories of witnesses as there are various CCTV footages which captured the event.  The prosecution also relies on photographs retrieved from the mobile phone of BM, a person alleged to have acted in concert with the defendant to commit the offences.” [21]

(5)  The public interest of ensuring those defendants charged with grave crimes should be tried.

(6)  The defendant was ready to proceed with the trial in January 2021 but for the unexpected unavailability of the Ewe interpreter.  He would receive due assistance from the same instructing solicitors in the future trial.

(7)  The defendant, a torture claimant who came to Hong Kong in 2003, has been granted bail and is only required to report once every fortnight.

(8)  Any disadvantage arising from the delay could be redressed by the cross-examination of the prosecution witnesses and appropriate directions by the judge to counteract the possible adverse effects that the delay could have occasioned.

22.I did not find this to be a case in which a fair trial would not be possible.  The defendant’s trial has not been compromised, and there was no abuse of power which would render the trial an affront to the court’s sense of justice and propriety.

23.For these reasons, I concluded that this was not a proper case to stay these proceedings.

Conclusion

24.The defence application to stay the proceedings was refused.

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

Mr Andrew Raffell, Counsel instructed by Messrs Morley Chow Seto, assigned by DLA, for the Defendant