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

HCCC 309/2019

[2023] HKCFI 1719

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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REASONS FOR DECISION

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The application

1.This is a second application by the defence for a permanent stay of these proceedings.  After hearing submissions in February 2023, 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

2.On 29 April 2016, the three accused (hereinafter referred to as “D1”, “D2” and “D3” respectively) were convicted on two counts of conspiracy to defraud contrary to common law after trial before Anthea Pang J, as Anthea Pang JA then was, and a jury (HCCC 83/2014, “the 2016 trial”).  D1 was also convicted on a count of money laundering in respect of his dealing with the alleged proceeds of such conspiracies to defraud (Count 3).  Their convictions were subsequently quashed by the Court of Final Appeal with a retrial ordered. The retrial was heard before Deputy High Court Judge Bruce SC and a jury in 2021.  On Day 57 of the retrial, a prosecution witness gave unsolicited evidence which was prejudicial to the accused.  Upon the defence application, DHCJ Bruce discharged the jury on 16 June 2021 and the retrial was aborted as a result (HCCC 309/2019, “the 2021 trial”).

3.Following the discharge of the jury, the accused made applications to permanently 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 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.  The application was heard by DHCJ Bruce on 25 June 2021.

4.On 30 November 2021, the judge ruled against the stay application.  The accused then sought leave to appeal directly to the Court of Final Appeal.  The application was dismissed as the Appeal Committee concluded that the Court had no jurisdiction to entertain the intended appeals.

5.The charges against the accused are now scheduled to be tried before another jury in July 2023.  On 10 February 2023 the defence filed a Motion to apply for a permanent stay of these proceedings^[1].

Grounds of the application for stay

6.This application was made under both categories of abuse of process as set out in HKSAR v Lee Ming Tee & anor^[2] (confirmed in HKSAR v Ng Chun To Raymond and Another^[3]).  The defence provided the following two grounds in the Notice of Motion dated 10 February 2023:

I.  The prosecution’s deliberate refusal to call and/or attempt to secure the attendance of five crucial witnesses (all of whom are professionals involved in the acquisition) in the upcoming Trial-3, knowing full well that they can give admissible and highly relevant evidence going to the truth of the matters underlying the criminal allegations and the prosecution’s case - amounts to an abuse of process.  These include:-

(1)  Contrary to the prosecution’s position in the 2021 Trial-2, they are now unwilling to call Mr Navin Aggarwal (462’s lawyer in the Acquisition) in Trial-3 notwithstanding that the prosecution made an application for a witness summons compelling his attendance in Trial-2;^[4]

(2)  Contrary to the ruling of Bruce DHCJ in Trial-2, the prosecution is now refusing to call Mr Nick Cross and Mr Kerry Knight to give evidence in Trial-3 despite being well aware (from Trial-2) that:-

(a)  Messrs Cross and Knight are willing and able to give highly relevant - indeed critical - evidence going to the truth of the matters underlying the criminal allegations and the prosecution’s case, and did so in Trial-2;

(b)  the necessary waiver for them to give that evidence has already been obtained by the prosecution from the liquidators of 462;

(c)  after full argument, Bruce DHCJ rejected the prosecution’s objections to calling both Mr Cross and Mr Knight, holding that the circumstances of the case and allegations (which the prosecution concedes remain the same) mandated that it was in the interests of justice that they be called by the prosecution (see Trial-2 Rulings dated 26/5/21 and 7/6/21).

(d)  Both Messrs Cross and Knight were called by the prosecution in Trial-2 and no sensible fresh reason has been advanced by the prosecution as to why they should not be called again in Trial-3.

(3)  The prosecution intend to suggest that the NZ$51.6m payment released by the law firm Knight Coldicutt was both dishonest and unauthorised (notwithstanding the fact that no such allegation is indicted) - knowing full well that Mr Cross and Mr Knight (of Knight Coldicutt) can give evidence directly contrary to such allegation.

(4)  The prosecution refuses to call Mr Wu Wing Kit (who was UBTL’s and UBFM’s lawyer in the Acquisition) in Trial-3 without even attempting to make any enquires with or obtain any witness statements from him, whilst knowing full well that he “can give relevant and admissible evidence”^[5] that is material to the prosecution allegations - constituting a serious breach of their duty of disclosure as explained in Ng Chun To (supra)^[6].

(5)  The above must be viewed in the context of the prosecution’s clear position that:- (i) “…the fact is what [PW1] was being told it [i.e. the transaction documents] meant by the fancy lawyers who drafted it is relevant, and what she believed she was signing is a relevant consideration, and that’s one of the reasons why we have also given consideration to calling Mr Aggarwal, who was the man who drafted this an advised her”; (ii) “Mr Aggarwal or Mr Wu might be able to solve” the issue whether D1 wanted the farm agreements to be disclosed to PW1 (which directly contradict the case that D1/D2 were in a conspiracy to defraud 462/PW1); and (iii) Mr Aggarwal “…can say how he was instructed to put together this agreement and how those clauses protected 462”;^[7] (iv) “…we wanted a witness to fill the gap I’ve told you about, and the candidates were Wu and Aggarwal”^[8].  And that the consideration of calling Mr Wu was only ruled out in Trial-2 because of Bruce DHCJ’s previous involvement with Mr Wu in a connected trial (which is no longer a concern in Trial-3).^[9]

(6)  That Mr David Wiltshire (the original farms accounts keeper who testified in Trial-2) is now unwilling to testify in Trial-3 - and no attempt has been made by the prosecution to utilise legal processes such as letters of request; mutual legal assistance or other steps to secure his attendance at Trial-3.

The above decisions by the prosecution result in serious abuse of process.  Further or in the alternative, the above renders it impossible for the accused to have a fair trial in Trial-3.

II.  It is not possible now for the accused to have a fair trial 14 years after the events the subject of the Indictment because (1) the prosecution witnesses can no longer remember those events, the conversations that took place at the time, or the documents written to and by them; (2) because of the deliberate failure on the part of the investigators to put the contemporaneous documents to them when their witness statements were taken.  This deprived the witnesses of the opportunity to refresh their memories from the documentary record when events were fresh in their minds. This has resulted in it not being possible for the defendants to adduce the truth of what happened from the prosecution witnesses who can no longer remember those events.  These matters individually and collectively result in the continuation of these proceedings being an abuse of process and renders it impossible for the accused to have a fair trial.

7.Belatedly, in the course of the hearing of the argument on other issues, on 24 February 2023 the defence added a third ground to the application:

III.  It is an abuse of process to maintain a prosecution case that is inconsistent with the core documentary record and contrary to the evidence of witnesses it refuses to call.

The law and applicable principles

8.A permanent stay of proceedings would only be justified in highly exceptional circumstances.  It is an exceptional remedy and is only available as a last resort.  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 accused and to the prosecution^[10]. The court would not normally intervene in the right of the prosecution to demand a verdict except that a fair trial is impossible or in rare cases.  Even where the bases of abuse have been established, the court should only impose a stay as a last resort where a stay is the only means of doing justice.  The burden is on the accused to show on a balance of probabilities that no fair trial could be held.

9.In general, if a prosecution is brought, the court’s duty is to try the case.  But in the exercise of its inherent power to prevent an abuse of its own process, the court has jurisdiction to stay criminal proceedings in two circumstances^[11]:

(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.  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 accused 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 accused being fairly and openly determined at trial. Powerful reason must exist for this to be displaced.

10.The principle was reiterated by the Court of Appeal in HKSAR v Ng Chun To Raymond ^[12]:

“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.”

Consideration of Ground 1

11.It is pertinent to note that in the course of the pre-trial argument in February 2023, separate issues were raised by the defence in connection with the calling of Mr Nicholas John Cross, Mr Kerry Joel Knight, Mr Wu Wing Kit and Mr Navin Aggrawal as prosecution witnesses, and the admissibility of Mr David Wilshire’s evidence without him being called as a live witness.

12.As a result of my ruling on 27 March 2023, the prosecution were invited to call Messrs Cross and Knight or to tender them as prosecution witnesses^[13]. As a result, the prosecution deferred to my invitation and would have those two persons called in the forthcoming trial.

13.I also ruled that the prosecution’s decision not to call Messrs Wu and Aggrawal was fully justified.  Leaving aside the issue of legal professional privilege concerning Mr Wu (the lawyer who had given advice to D1 and D2 at the time) which did not appear to be forthcoming, I concluded that no unfairness was likely to occur because it would be open for the defence to have them called if they wish to do so^[14].

14.The situation regarding Mr Wilshire has since been overtaken by events.  For reasons set out in the same judgment^[15], it was apparent that he was an unwilling overseas witness who could not be compelled by the Hong Kong courts to give evidence.  The defence had made it clear that they would not need Mr Wiltshire to be called, but “there are consequences of him not being called by the prosecution”.  Pursuant to my ruling on the admissibility of his evidence given in the previous trials, the prosecution have taken out MLA application in order to secure the live evidence of Mr Wiltshire by TV link.  Nonetheless, given his reluctance to testify in the forthcoming trial, it remains uncertain as to whether the prosecution could succeed in doing so. 

15.Given that the defence would not require the calling of Mr Wiltshire’s evidence, there is no basis for me to conclude that his unavailability would adversely affect the fairness of the trial.  On the contrary, the defence would be able to comment on the impact of his absence on the strength of the prosecution case. 

16.For the reasons stated above, I am satisfied that this ground would not have any effect on the fairness of the forthcoming trial.

Consideration of Ground 2

17.As Mr Mitchell for the prosecution rightly pointed out, the complaints under this ground are exactly the same as those contained in the Joint Defence Submissions filed before DHCJ Bruce save for the contention that “the unfairness is now aggravated by the prosecution’s refusal to call the witnesses stated above”.  The only change of circumstances was that the previous ruling was made some 18 months ago, and this time-lapse was partially caused by counsel’s unavailability.

18.DHCJ Bruce summarized the accused’s argument as follows[16]:

“Grounds (f) and (g): Unacceptable delay

…

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.”

19.There is no dispute about the applicable legal principles set out in the judgment of DHCJ Bruce as follows[17]:

“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.^[18] 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:^[19]

(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:^[20]

“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.^[21]

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:^[22]

“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^[23] a passage from Lord Lowry in R v Horseferry Road Magistrates Court, ex p Bennett [1994] 1 AC 42 as follows:^[24]

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.^[25]”

20.It is to be noted that DHCJ Bruce had the advantage of hearing almost all the evidence to be adduced by the prosecution at the 2021 trial where D1 and D2 were respectively represented by the same legal team.  He was in a better position to assess the impact of the failure of the witnesses’ memories on the fairness of the proceedings.  In his judgement, DHCJ Bruce provided very detailed analysis (which I do not intend to repeat here) before concluding that the accused would be able to get a fair trial.  I do not see any proper basis for me to deviate from his well-analysed reasoning.

21.To alleviate the possible memory failure due to the length of the time lapse, I have directed the prosecution to provide the witnesses with the transcript of their evidence in the previous proceedings including the preliminary inquiry.  The defence were contended with this arrangement.

22.For the reasons mentioned in paragraphs 11-16 above, I also reject the further contention that the unavailability of the witnesses specified in Ground 1 would render a fair trial impossible.

Consideration of Ground 3

23.By this ground the defence made serious allegations about the conduct of the prosecution.  It was alleged that the prosecution case was inconsistent with the core contemporaneous documents (“the Documents”) contained in the unused materials.  Notwithstanding that the defence adduced the Documents into evidence through cross-examination of witnesses in the 2021 trial, the prosecution had never addressed how its case could be put consistently with them.  The defence submitted that the maintenance of a prosecution case that was inconsistent with the Documents and contrary to the evidence of witnesses which the prosecution refused to call amounts to an abuse of process in breach of the law and the Prosecution Code.

24.Mr Mitchell for the prosecution rejected the allegation that the prosecution is attempting to present a case in direct conflict with the documents, pointing out that there is a clear danger in presenting the Documents out of context of other evidence.  He referred to some of the evidence given by the main witnesses in the 2021 trial to contend that the prosecution case is consistent with the evidence of the witnesses and consistent with the key documents such as the agreement and the deed of undertaking.

25.I agree with Mr Mitchell that the significance of the Documents would have to be assessed in light of the evidence to be given by the witnesses.  Without hearing evidence I am unable to say that the intended prosecution case is inconsistent with the context of the Documents.  As such I am not satisfied that the defence had established on the balance of probabilities that this ground amounts to any abuse of process.

Conclusion

26.Having considered the whole circumstances, I am satisfied that this is not a case in which a fair trial would not be possible. This was not a proper case to stay these proceedings.  The defence application to stay the proceedings was refused.

Postscript

27.These reasons are provided for the parties’ information only.  The only part of this judgment which may be reported publicly are the above Conclusions.  The remaining part of this judgment may not be reported until further order or until the conclusion of the trial.

Mr Neil S Mitchell, Counsel-on-fiat, leading Miss Ng Oi Lam, Joycelyn, SPP of the Department of Justice, and Mr Li Chun Ngai, Martin, Counsel-on-fiat, for the Prosecution

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

Mr Ian Winter, K C, leading Ms Betty Chiu, instructed by Haldanes, for the 2^nd Accused

The 3^rd Accused appeared in person

[Subject to Reporting Restrictions as per Paragraph 27 of this judgment]