HKSAR v. Lcmb

HCCC 8/2022

[2022] HKCFI 3302

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL JURISDICTION

CRIMINAL CASE NO 8 OF 2022

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D E C I S I O N

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A. THE APPLICATION

1.This application is made by the Defendant who is charged with two counts of Rape and one count of Indecent Assault. The Defendant had challenged the case in the committal proceedings[1] with the result that he was committed to the Court of First Instance for trial. Represented by Mr Alan Hoo, SC, together with Mr Edward KH Ng, he initially lodged an application for stay of proceedings and in the course of the hearing applied also for quashing of the indictment on the ground that the committal proceeding is fundamentally defective.

2.Despite the trial, if proceed, will be conducted in Chinese, I acceded to parties’ request that the proceeding in relation to these two matters be conducted in English.

3.In support of the application for stay, Mr Alan Hoo, SC, alleged that there has been multiple abuse of process by the Prosecution and the investigation authority, and as a result a fair trial for the Defendant is impossible; and in any case, the Prosecution’s conduct is an affront to the conscience of the Court.  The application for quashing of the indictment is based on an alleged non-compliance of certain statutory requirements as provided in the Magistrates Ordinance[2].

B.  THE CASE ALLEGED AGAINST THE DEFENDANT

4.The complainant in the case is the daughter of the Defendant.  The prosecution relies solely on her allegations in relation to three separate incidents: twice in March 2020 and once in April 2020, to bring the case against the Defendant.

5.To complete the picture, the complainant had made allegations about three other incidents which took place in January 2020 but as the alleged incidents occurred out of jurisdiction these matters do not form part of the case.

C.  COMMITTAL PROCEEDINGS AGAINST THE DEFENDANT

6.The Defendant elected to have the charges heard at a Preliminary Inquiry.

7.At the Preliminary Inquiry, the complainant, the pathologist who had examined her, her mother, a social worker and a police officer testified.  The Defendant did not testify, nor did he call any witness.

8.The Magistrate found that the evidence adduced in the Preliminary Inquiry was sufficient to put the Defendant upon his trial for the offences and therefore ordered that he stand committed for trial at the Court of First Instance.[3]

D.  GROUNDS IN SUPPORT OF THE APPLICATION

9.Seven grounds were put forward in support of the application for stay:

(1)  Suppression of the evidence of the Police pathologist who examined the complainant;

(2)  Suppression of the evidence of the social worker to whom the complainant made the first complainant against the Defendant;

(3)  Suppression of the evidence of the police officer(s)  to whom the complainant had made statements;

(4)  Possible misuse of the evidence of the mother of the complainant;

(5)  Abuse of process by the complainant, which may amount to contempt of court;

(6)  Refusal of the prosecution to furnish further material particulars of offence; and

(7)  Failure / Refusal to investigate the case of the Defendant.

10.At the first day of hearing, Mr Hoo, SC, raised a further matter relating to the committal proceedings, arguing that the committal was fundamentally defective.  The hearing was adjourned for parties to file further submission.

11.In his first further submission, Mr Hoo, SC, indicated the stand that, despite the situation is not sufficient to quash the indictment, permanent stay of the proceedings is the only appropriate course to take in the light of the defect as it amounts to a blatant abuse of process which undermines the administration and course of justice[4]. At the hearing, he revived the submission that the indictment should be quashed.

DISCUSSION AND CONSIDERATION

E.  Quashing of the Indictment

12.Mr Hoo, SC, complained that as there has been non-compliance of the statutory requirement as provided in section 86(1)(d)  of the Magistrates Ordinance,[5] the committal was fundamentally defective and as a result the indictment should be quashed.

13.Section 86(1)(d)  provides:

“(1)  There shall be transmitted to the Registrar as soon as may be after the committal of the accused—

...

(d)  in the event of a committal under section 85(2), the depositions of the prosecutor and the witnesses, including witnesses (if any)  called by the accused, the statements (if any)  admitted, or deemed to be admitted, in evidence on behalf of the prosecution, the statement of the accused and his evidence (if any), certificates signed by the magistrate stating that he has observed the requirements of sections 82, 83 and 85(2), a statement as to the witness orders or conditional witness orders made under section 84 and the recognizances of the bail, if any, any documents which have been produced in evidence, and a list, signed by the magistrate, of all exhibits produced in evidence;”

14.The main complaints are:

(1)  The “documents which have been produced in evidence” have not been transmitted to the Registrar; and

(2)  No “list, signed by the magistrate, of all exhibits produced in evidence” has been transmitted to the Registrar.

15.The crux of the submission of Mr Hoo, SC, is that, as a result of the non-compliance, the committal is defective.

16.Various documents have been introduced and provided to the Magistrate at the Preliminary Inquiry both by the Prosecution and the Defence, each of which was marked as “MFI” rather than given an exhibit number.  There were 4 from the Prosecution and 15 from the Defence.

17.These documents are not included in the Committal Bundle.  However, unknown to Mr Hoo, SC, at the time he filed the written submissions[6], all these documents have been transmitted from the Magistracy to the Court of First Instance.

18.In the Committal Bundle, there is a document entitled “Master Exhibits List”[7], in which 14 exhibits are set out.  There is also a document entitled “List of Documentary Exhibits”[8]. The documents marked as “MFI” have not been referred to in any papers in the Committal Bundle signed by the Magistrate.

19.Mr Hoo, SC, submitted that the deliberate omission of all the documents marked as “MFI” which were in fact produced as evidence at the Preliminary Inquiry renders the committal for trial fundamentally defective because not the whole of the evidence seen and considered by the Magistrate and formed the basis of his decision that “such evidence is sufficient to put the accused upon his trial” had been sent to the Court of Frist Instance. 

20.The situation is as set out in paragraphs 16 and 17 above.  It was obviously a consequence of the practice adopted in the Preliminary Inquiry that the documentary exhibits in question were not given an exhibit number and instead marked as “MFI”.  Senior Counsel was present at that hearing and apparently no issue of the practice had been taken.  Indeed, the exhibits adduced by the defence were also marked as “MFI”.

21.As said, the documents in question, despite not included in the Committal Bundle itself, have in fact been transmitted to the Registrar.  What lacking now is only a list of the items produced and marked as “MFI” signed the Magistrate. It is beyond doubt that these items had been considered by the Magistrate before he satisfied that this case should be committed.  Mr Hoo, SC, did not make any suggestion that the Magistrate had not considered the material marked as MFI.  There can be no dispute or confusion as to what these items are.  Both parties have full knowledge of the content of the documents.  I see no hurdle, nor anything to stop, these documents to be adduced before the jury at the trial.

22.The court was informed that some of these documents were produced in the form of a copy.  It might have done in this way as parties were content to do so, and in any case, the practice was accepted by the Magistrate.  The key point is, for those documents of which only copy have been adduced, so long as the original is in existence, the veracity of the content can be verified.

23.I am prepared to consider the matter of whether the committal is defective and / or the indictment should be quashed, on the basis that the statutory requirements under section 86(1)(d)  had not been duly complied with.  Nevertheless, the whole circumstances will be taken into account.

24.Citing Ho Yee-chung v R[9] where the court states “the purpose of sections 81 - 87 is to regulate committal proceedings and to that end certain procedural safeguards are provided to obviate errors of varying degrees of substance”, Mr Hoo, SC, argued that as probative evidence produced by witnesses that gave evidence at the committal are missing and instead have been replaced by a list of immaterial evidence neither produced or referred to at the Preliminary Inquiry, the committal proceedings is substantially deficient.  By “a list of immaterial evidence” Mr Hoo, SC, was referring to the document in the Committal Bundle entitled “Master List of Exhibits”.  Listed in this document are probably all the exhibits in the possession of the prosecution and include items which are no longer relevant to the trial as a charge originally laid had been dropped and some probably will not be produced in the trial of the present case.  Be that as it may, I do not share the view of Mr Hoo, SC, that there had been a deliberate attempt to “replace” as he alleged.

25.Mr Hoo, SC, also stressed that the statutory requirements in the context are mandatory which requires substantial compliance.  He cited R v Gee[10] and submitted that the defect in the present case is so defective that as in that case, there was no lawful committal.  In R v Phillips[11], the UK Court of Appeal observed: “we are of opinion that in the present case the irregularity was at least as serious as that which the court then regarded as sufficiently grave to invalidate the committal”.

26.Assessment of the nature and degree of seriousness of the alleged irregularity is material consideration as to whether the committal should be invalidated.

27.In Ho Yee-chung[12], the irregularity was that the record did not show that the magistrate had read back to the accused their statements made in answer to the charge and recorded by the magistrate.  On appeal, the argument before the court was that the statutory provisions are mandatory and therefore imperative in the sense that bare non-compliance with them will wholly nullify the proceedings.  The appeal failed and the court observed:

“… the provision is mandatory only in the sense that failure to comply with it nullifies the procedural act which is regulated by sub-section 3 and avoids its proper consequence which is the securing of an admissible record of the accused’s reaction to the charge.”[13]

28.A probable reason that the documents in question were left out is a result of the atypical practice mentioned in paragraph 16 above.  In my judgment the committal was not defective, and in any case the irregularity is not of the nature and seriousness which justify a declaration that the committal is a nullity and quashing of the indictment.

29.Besides, in a case cited by Mr Kwan, R v Hall[14], Lord Lane CJ observed:

“… the certificate is not the committal. The committal must have taken place before this document came into existence … it seems to this court highly likely to be when the committing justice tells the defendant that he is to be committed; that spoken order is probably the committal.”[15]

30.This observation was cited with approval in R v Carey[16] where Lawton LJ said:

“[The certificate] is therefore something which comes into existence after committal. It accompanies the documents which are sent to the court of trial and which are being relied upon by the prosecution and certifies certain matters for the information of the Crown Court .. [the regulations] is essentially procedural and directory in nature and intended to satisfy the Crown Court that the procedure has been properly complied with. It is not, in our judgment essential to the committal. The committal is a fact which occurs in the course of the proceedings, and no more.”[17]

31.The alleged irregularity in the present case is about procedures which took place after the Magistrate had announced his decision.  This is another reason based on which I hold that the committal is not defective nor a nullity and quashing of the indictment is not justified.

F.  THE APPLICATION FOR STAY OF PROCEEDINGS

F1.  Basic principles in consideration of an application for stay of proceedings

32.In an application for stay, it is for the Defendant to show on balance of probabilities that he will suffer serious prejudice to the extent that no fair trial can be held, in other words, continuation of the prosecution amounts to a misuse of the process of the court.[18]

33.The Court of Final Appeal held in HKSAR v Lee Ming Tee[19] that staying of criminal proceedings would only be justified in highly exceptional circumstances.  A stay would be granted if[20]:

(1)  notwithstanding the range of remedial measures available, a fair trial for the accused was impossible and continuation of the prosecution would amount to an abuse of process;

(2)  in very rare cases, although the fairness of the trial was not in question, 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.

34.The Court further observed that in the said latter scenario, the court is not exercising the jurisdiction to stay as a means of disciplining the public officials involved.

35.The Court has also made the following observations and cited some of the following observations with approval:

(1)  the jurisdiction to stay is most sparingly exercised[21];

(2)  only in very unusual circumstances that a court can properly be satisfied that a fair trial is impossible[22];

(3)  the fairness achievable is judged in practical and not absolute terms[23];

(4)  a power to ensure a fair trial is not a power to stop a trial before it starts.  It is a power to mould the procedures of the trial to avoid or minimize prejudice to either party[24];

(5)  the public interest lies in the guilt or innocence of the accused being fairly and openly determined at trial.  For this to be displaced, powerful reasons must exist for concluding that a fair trial is not possible, or such a trial though fair would nonetheless constitute an intolerable abuse of the court’s process[25];

(6)  if a prosecution is brought, the court’s duty is to try the case[26];

(7)  generally speaking, a prosecutor has as much right as a defendant to demand a verdict of a jury on an outstanding indictment, and where either party demands a verdict a judge has no jurisdiction to stand in the way of it;[27] and

(8)  where the ground on which a stay is sought concerns alleged unfairness in the use of particular classes or items of evidence, the courts, for procedural reasons, are extremely reluctant to determine the evidential questions on a stay application, as the fairness of using the evidence may be incapable of evaluation prior to the trial itself, the impact of such evidence on the fairness of the trial may need to be considered in the context of the evidence as a whole so that the question may best be dealt with as a question of admissibility to be determined by the trial judge who has discretion to exclude the evidence[28].

F2.   Allegation in relation to the committal proceedings

36.The allegation is as set out in paragraphs 12 - 19 above.  Not only is the allegation relied upon in the application to quash the indictment, it is argued as a ground in support of the stay application.

37.Mr Hoo, SC, submitted that absence of the evidence in question at the trial before the jury will fundamentally prejudice the Defendant’s right to a fair trial.[29]

38.As said, all the documents are in existence and if any party intends the material to be adduced in evidence before the jury, it can be done.

39.I do not find the situation amounts to an abuse of process and in any case a matter which justifies consideration of a permanent stay of proceedings.  No real prejudice had been and will be caused to the defence.

F3.   Ground 1: Suppression of the evidence of the Police pathologist who examined the complainant

40.The only evidence against the Defendant comes from the complainant.  As submitted by Mr Hoo, SC, the complainant had made graphic description of the conduct which she alleged the Defendant had performed on her.  In relation to the two incidents of alleged rape, which form two of the subject matters in the trial, the complainant said on each occasion there was penetration and also ejection inside her.

41.Mr Hoo, SC, stressed that the Police pathologist has pointed out in the report matters including the followings:

(1)  the hymen of the complainant was of cresentic and dilatable type with fleshy hymenal tissue and folded margin.  No scar, injury, or abnormality found;

(2)  speculum examination showed no injury to the vaginal wall and cervix; and

(3)  there was no injury or scar found on the private parts to corroborate the subject’s allegation of having sexual intercourse between the material period of time.

42.Mr Hoo, SC, also complained that in the light of such findings of the Police pathologist, no advice or follow up action such as psychological counselling was given or ordered by the forensic pathologist.

43.Counsel for the Prosecution, Mr Steven Kwan, stated that:

(1)  the forensic examination report[30] and the witness statement[31] of the pathologist had been disclosed to the defence as unused material before the preliminary inquiry;

(2)  as the prosecution was of the view that the evidence of the pathologist is neutral, it was not relied upon in the preliminary inquiry; and

(3)  the pathologist was, in any case, tendered and was subject to cross examination in the preliminary inquiry.

44.Having cited certain authorities in relation to the duty of the prosecution to call witnesses[32], Mr Kwan indicated that, in the interests of justice, the pathologist will be called at the trial. Whether there will be examination in chief or that the witness will be tendered for cross examination will be decided in the light of the progress of evidence.

45.In the circumstances, there is no need to consider this ground further.

F4.   Ground 2: Suppression of the evidence of the social worker to whom the complainant made the first complainant against the Defendant

46.The complainant made the allegation of rape to a social worker on 7 December 2022.  A report was made to the police on 11 December 2022.

47.It was pointed out that the evidence of the social worker indicates that:

(1)the complainant did not want to make a report to the Police immediately;

(2)she needed the advice of lawyers before making such a report; and

(3)she would contact the social worker as to when to make the report.

48.Mr Hoo, SC, complained that such evidence has been deliberately suppressed and not adduced by the Prosecution, leading to the false impression that the complainant made the allegations against the Defendant to the social worker and made a report to the Police on the same day.

49.Again, Mr Kwan pointed out that the witness statement[33] of the social worker had been disclosed prior to the preliminary inquiry and she was tendered in the preliminary inquiry for cross examination.

50.Mr Kwan also indicated that the intent of the prosecution is to call the social worker at the trial but as she had left the original employment it is uncertain whether her attendance can be secured.

51.In this regard, I note that an unconditional witness order[34] had been made by the Magistrate.  The prosecution is to make their best endeavour to secure the attendance of this witness.  The court was given to understand that it might be possible to serve the witness summonse through the organisation who employed the social worker before.

52.In case her attendance cannot be secured, the witness statement of the social worker can be adduced under section 65B of the Criminal Procedure Ordinance[35] or that her testimony in the preliminary inquiry be adduced through admitted facts, as appropriate and permissible in the circumstances.

53.In the light of above, this ground alone does not justify staying of the proceedings.

F5.   Ground 3: Suppression of the evidence of the police officer(s)  to whom the complainant had made statements

54.When the complainant made a report to the police on 11 December 2020, she was interviewed by WDPC 4487.  Mr Hoo, SC, pointed out that there are marked inconsistencies between the account which the complainant gave to the officer and what she testified in court during the preliminary inquiry and complained that the evidence of the police officer is deliberately suppressed by the prosecution so that the court is misled about the full picture, including that the inaccurate impression that the complainant had made a full first complaint to her mother about all sexual attacks on her.

55.In this regard, Mr Kwan informed the court that:

(1)  the witness statement of the complainant taken by WDPC 4487[36] had been disclosed to the defence;

(2)  the notebook of this officer had also been disclosed, as unused material; and

(3)  the officer was tendered for cross examination in the preliminary inquiry.

56.In the interest of justice, there is no sound reason for the prosecution not to call this officer at the trial.  With this in mind, this ground alone does not justify staying of the proceedings.

F6.   Ground 4: Possible misuse of the evidence of the mother of the complainant

57.According to the witness statement of the complainant, she told her mother all of the sexual attacks and it was her mother who suggested to make a report to the police.  However, when the mother testified in the preliminary inquiry, no evidence was adduced by the prosecution that she was aware of any rape and that she had suggested a report to the police.  She was only tendered for cross examination.  During her cross examination, matters relating to her petition for divorce on the ground of unreasonable behaviour were elicited.  There was no evidence from her that the complainant had made allegations to her against her father for rapes or other forms of sexual attacks.

58.Mr Hoo, SC, submitted that, at the trial the Prosecution should only be relying on the evidence which the mother gave during the preliminary inquiry and not on what she said in her witness statement.

59.As to the course of action which the Prosecution took at the Preliminary Inquiry, Mr Kwan highlighted the following provisions in section 85(2)  of the Magistrates Ordinance[37]:

“If in the opinion of the magistrate, after hearing such evidence as aforesaid and taking into consideration any statement of the accused, such evidence is sufficient to put the accused upon his trial for an indictable offence, or if the evidence given raises a strong or probable presumption of the guilt of the accused, then the magistrate shall order the accused stand committed for trial … .”

and stated that, as the Prosecution was of the view that the evidence of the mother did not have such effect, the Prosecution did not consider it necessary to adduce at the preliminary inquiry the evidence of the mother regarding complaint to her by the complainant.  When it comes to the trial before the jury, the prosecution intends to adduce evidence from the mother in relation to the complaints made to her.

60.The prosecution has a wide discretion to decide what to elicit from a witness. That the Complainant had made a complaint to her mother is material set out in the proof of evidence and had been properly disclosed.  Subject to any applicable evidential rules, I do not think there should be restriction when she is to testify as Mr Hoo, SC, suggested.[38]

61.If any issue of admissibility arises, the court will make a ruling.  It does not form a basis to stay the proceedings.

62.Once the witness is called, she is subject to cross examination in all the areas which the defence wishes to cover subject to the rule of relevance.  No prejudice to the defence is anticipated.

F7.   Ground 5: Abuse of process by the complainant, which may amount to contempt of court

63.The hearing of the preliminary inquiry took place in chambers[39] from 3 - 21 January 2022, which was subject to reporting restrictions[40].  The complainant was the first witness called.  On 6 January, when the complainant was still under cross examination, there was a YouTube footage featuring conversation of two persons talking in some details about the contents of the hearing in particular what the complainant said in her testimony.  A disc recording the YouTube material had been played at the hearing of the application.  It is a static screen showing the picture of the Defendant and a woman accompanied with the voice of two persons having conversation about the case and what happened in the hearing, with some negative comments on the accused.  Though the face of the Defendant and the woman was pixelated, their facial appearance can still be seen hazily and recognizable.  The footage also revealed the identity of the Defendant and his employer, and bore strong implication that the Defendant was having an affair with the woman shown in the footage.

64.Mr Hoo, SC, said that the Defendant was as a result summarily dismissed by his employer and has to resort to legal aid for legal representation.  Despite the prosecution undertook to investigate the matter when a complaint was made to the magistrate, there seems to be no progress until now.

65.The court was told that the video footage had become inaccessible locally in early April 2022 but by that time had already attracted over 58,000 views and 3,200 likes as well as various comments in the discussion forum. Mr Hoo, SC, submitted that this severely undermines the right of the Defendant to a fair trial by jury.

66.Mr Hoo, SC, stressed that as the Preliminary Inquiry was held in chambers and only a limited number of persons would have known what had happened at the hearing.  He submitted that, from the content of the video footage which obviously casts an unfavourable light on the Defendant, it is unlikely that such happenings would have been a result of the conduct of the Defendant and / or his legal representatives.  Mr Hoo, SC, pointed his finger at the Complainant as the likely person who provided the information.

67.Mr Hoo, SC, submitted that the YouTube broadcast was a blatant attempt to convict the Defendant in the media and was done deliberately.  He further submitted that the damage done to the Defendant’s right to a fair trial is undermined.

68.In this regard, Mr Kwan pointed out that, at the time of the Preliminary Inquiry, after the Defence had drawn the attention of the prosecution to the matter, the complainant was recalled so that she could be cross examined on the matters as mentioned above.  She denied the allegation.

69.Mr Kwan also informed the court that the matter had been referred to the Department of Justice and as a result the police carried out investigation.  Investigation revealed that the person responsible for the publication of the YouTube footage is a wanted person who is out of the jurisdiction.  The material related to the investigation has been disclosed to the defence as unused material.  The video was taken down from YouTube in April 2022.

70.Mr Hoo, SC, complained in strong terms that the police failed to properly investigate the matter, in particular not having carried out proper investigation on the complainant.  In this regard, from all the court has been told I do not think there is sound reason to doubt the good faith of the police.  The court is to trust their expertise and judgement.

71.It is trite that at common law, it is a contempt of court to publish or do other acts which are likely to prejudice or interfere with pending criminal proceedings. The relevant time for determining whether or not a publication creates a real risk of prejudice is the time of publication.[41] Obviously, the person who published the footage is guilty of contempt of court and / or an offence under section 87A of the Magistrates Ordinance[42].  So is the person who caused the broadcast to be made.

72.It is the submission of Mr Kwan that the issue of whether the complainant had caused or contributed to the publication of the issue and, if so, whether it evinces an ulterior purpose in fortifying her complaint against the Defendant, is a matter for trial.  A case for stay of proceedings based on the alleged matter is not made out.

73.Adverse publicity in the reporting of notorious crimes can be considered as obstacles in the way of a fair trial and there were applications for stay based on this ground.  In Jago v District Court of New South Wales[43], Brennan J said that this does not necessarily cause the proceedings to be stayed, as unfairness occasioned by circumstances outside the court’s control does not make the trial a source of unfairness, the responsibility of the trial judge to avoid unfairness, is not discharged by refusing to exercise the jurisdiction to hear and determine the issues, but by controlling the procedures of the trial including making of interlocutory orders, rulings on evidence and directions to the jury designed to counteract any prejudice which the accused might otherwise suffer.[44]

74.In R v Kray[45], Lawton J[46] said:

(10)  “… I have enough confidence in my fellow-countrymen to think that they have got newspapers sized up just as they have got other public institutions sized up, and they are capable in normal circumstances of looking at a matter fairly and without prejudice even though they have to disregard what they may have read in a newspaper. So, the mere fact that an earlier trial had been reported at length in the Press would not, in my judgment, amount to establishing a prima facie case of the probability of bias or prejudice in anyone summoned to attend as a juror for a later trial. …

… It is, however, a matter of human experience, and certainly a matter of the experience of those who practice in the criminal courts, first, that the public's recollection is short, and, secondly, that the drama, if I may use that term, of a trial almost always has the effect of excluding from recollection that which went before. A person summoned for this case would not, in my judgment, disqualify himself merely because he had read any of the newspapers containing allegations of the kind I have referred to; but the position would be different if, as a result of reading what he had, his mind had become so clogged with prejudice that he was unable to try the case impartially.” (emphasis added)

75.Lawton J further observed that, in exceptional cases, the judge may permit to question potential jurors to see if he or she is able to try the case impartially.[47]

76.At trial, if the defence is to cross examine the complainant on this matter, it is clearly permissible, subject to the legally accepted ambit and the collateral issue rule.

77.The You-tube footage contains material no doubt not conducive to a fair trial. However, the footage has been taken down for six months and at the time of trial for more than nine months.  It is alleged that the footage can still be viewed in overseas sites, even if it is the case, in my judgment the undesirable effect is substantially confined.

78.As said, photograph of the Defendant was shown.  Information which may lead to identifying the Defendant, such as the company which employed him, his position in the company and his salary, was present.  It is hard to anticipate that, at the trial, such information would come out in evidence as a matter of necessity.  The risk that a person will be caused to link the case to the YouTube coverage even if he had seen it should be relatively low.  The complainant was called X in the YouTube coverage, it has become known to the public that a witness in a sensitive case is commonly called X and therefore unlikely cause any association.

79.During the jury empanelling, it has been the practice that jurors chosen will be asked whether they know the defendant.  If parties consider appropriate, they can also be asked whether they had seen the defendant before by any means.  This will greatly reduce the situation which causes concern.

80.The jury will be given proper directions in due course in this regard.

81.All in all, having regard to the observations in the cases mentioned above, in my judgment, this matter alone does not justify staying of the proceedings, any risk of potential prejudice can be cured or alleviated by proper measures.

82.Mr Hoo, SC, also highlighted the cumulative effect of this matter and the timing of making the complaint which coincided that of the filing of petition of divorce, resulting in a situation where the Defendant was deprived of legal aid and would be lack of means to engage private lawyer.  He further submitted that this was the deliberate and obvious intention of the YouTube broadcasting, so that he would become unable to have proper legal representation at his trial.

83.The latter submission involves a degree of speculation.  I appreciate the financial situation of the Defendant is that, on the face he has a level of assets which justifies asking his payment of contribution for legal aid purpose[48] but as disposition of marital properties requires consent from his wife and the Family Court, he has difficulties fulfilling the contribution requirement.

84.However, having considered the whole context of the case, I do not consider this reflects any ill faith on the part of the prosecution, makes a fair trial impossible, or is a matter amounts to an abuse of power which so offended the court’s sense of justice and propriety that the entire prosecution is tainted as an abuse of process.

F8.   Ground 6: Refusal of the prosecution to furnish further material particulars of offence

85.The complaint is about the dates of the alleged offences.  At present, what stated in the indictment are “an unknown day in March / April”.  It is complained that such vagueness severely affects the accused rights to a fair trial in particular as regards the difficulty in advancing alibi evidence.

86.Mr Hoo, SC, pointed out that:

(1)  the accused can prove that he was for 80% not at home in the day time;

(2)  there may an alibi witness;

(3)  the prosecution should have made further enquiries of the dates of offence; and

(4)  in any case, the first two weeks in March could have been excluded as the complainant only returned to Hong Kong on 18 March 2020.

87.Mr Kwan stated that:

(1)  the date of the alleged incidents as stated in the indictment clearly shown that there were three separate and distinct incidents and there is no overlap;

(2)  the way of pleadings in the indictment is in full compliance with the guidance given by the Court of Final Appeal in Chim Hon Man v HKSAR[49];

(3)  as the travel record of the complainant had been disclosed to the defence, the defence has full knowledge that she only returned to Hong Kong on 18 March 2022, the result is that the case against the Defendant must be one which took place between 18 and 31 March 2022;

(4)  the indictment can be amended to reflect the situation just mentioned; and

(5)  the particulars in the indictment is the best the prosecution can give in the circumstances.

88.In Chim Hon Man[50], Sir Anthony Mason NPJ referred to the following dicta of Rougier J in R v Evans[51]:

“ … in these cases, when a child has allegedly been abused on many occasion, over a lengthy period, it is quite unrealistic to expect that child to be particularly specific as to precise dates or places under the sanction that if, owing to the very multiplicity of offences, coupled with the lapse of time and failing memory caused by a natural desire to put the experience behind him, he cannot do so, his abuser is immune. To hold otherwise would be a charter for those [who] commit this sort of offence.”

89.The difficulties encountered by the defence, in particular in relation to adducing alibi evidence, is well appreciated.  The way the indictment is pleaded is, however, not uncommon in this nature of case.  If find necessary having heard the evidence, the jury can be reminded in the direction of the difficulty which the defence may face in the light of the inexact date of alleged incidents, in particular in adducing of alibi evidence.

90.I do not find this ground, on its own, merits staying of the proceedings.

F9.   Ground 7: Failure / Refusal to investigate the case of the Defendant and his brother

91.The failure / refusal which Mr Hoo, SC, complained against can broadly be set out as follows:

(1)  no investigation into the allegation of the complainant of same nature against the brother of the Defendant which took place in the US;

(2)  no investigation in relation to the allegation against the Defendant which took place in Shanghai;

(3)  no investigation into the relationship the complainant and her mother had with a cult figure;

(4)  the report to the police was made after service of the divorce petition and there was no investigation into the delayed report; and

(5)  no investigation of the dates of alleged incidents despite repeated complaints by the Defendant.

92.It was held by the South Australian Court of Criminal Appeal in R v Ulman-Naruniec[52] that there might be cases in which the conduct of the investigating authority is such that a court will conclude that an accused cannot obtain a fair trial.  The court, however, added that only in the rarest and most exceptional cases that a prosecution would be stayed as an abuse of process solely because of the conduct of the investigating authority.[53]

93.The allegation made by the complainant against the brother of the Defendant is in relation to matters which took place in Los Angeles.  There were also allegations against the Defendant in relation to matters which took place in Shanghai.  These alleged conducts are beyond the territorial jurisdiction of the courts in Hong Kong.  The police is not obliged to investigate into such matters.  The situation cannot be characterized as offending the court’s sense of justice and propriety.

94.As regards the matters in relation to the cult figure, Mr Kwan informed the court that this person is in custody for a homicide case.  At the moment, it is not clear what bearing the relationship the complainant and her mother have with this person has on the present case.  As Mr Kwan pointed out, it is for the defence to explore the matters at the trial, within its proper parameters.

95.In my judgment, this ground alone does not justify staying of the proceedings.

G.  CONCLUSION

96.For the reasons mentioned, I do not find any of the grounds raised by the Defendant on its own justify staying of the proceedings.

97.I have considered the whole circumstances of the case, having particular regard to the cumulative effect as submitted by Mr Hoo, SC, which includes what set out in paragraph 82 above, and that of an alleged defective committal and the matters relating to the contempt of court, I do not find the Defendant has satisfied me on balance of probabilities that he will suffer serious prejudice to the extent that no fair trial can be held.  I do not find continuation of the prosecution amounts to a misuse of the process of the court.  I do not find that the circumstances involved or will involve an abuse of power which so offend the court’s sense of justice and propriety that the prosecution is tainted as an abuse of process. In my judgment, it does not serve the public interest to stay the proceedings.

98.I therefore refuse the application to stay the proceedings.

97.  As mentioned earlier, I do not find the committal is materially or fundamentally defective and there is no reason to quash the indictment.

Mr Hoo, Alan, SC, together with Edward KH Ng (not present at the second day of hearing), instructed by Messrs Tung, Ng, Tse & Lam, for the Defendant

Mr Kwan, Steven MW, counsel on-fiat, for HKSAR