HKSAR v. Yeung King Lun and Others

DCCC 299/2021

[2024] HKDC 6

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 299 OF 2021

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RULING

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1.This is an application for a permanent stay of proceedings.

Background

2.There are 5 defendants in these proceedings.

3.D1 and D3 are charged with:

(1)  one count of Conspiracy to Commit Misconduct in Public Office, contrary to Common Law, sections 159A and 159C of the Crimes Ordinance, Cap 200 and section 101I(1) of the Criminal Procedure Ordinance, Cap 221 (Charge 1);

(2)  D2 to D5 are charged with one count of Conspiracy to Commit Misconduct in Public Office, contrary to Common Law, sections 159A and 159C of the Crimes Ordinance, Cap 200 and section 101I(1) of the Criminal Procedure Ordinance, Cap 221 (Charge 2);

(3)  D3 is also charged with one count of Conspiracy to doing an Act Tending and Intended to Pervert the Course of Justice, contrary to Common Law, sections 159A and 159C of the Crimes Ordinance, Cap 200 and section 101I(1) of the Criminal Procedure Ordinance, Cap 221 (Charge 3).

4.The Prosecution alleged that:

Charge 1

(1)  D1 was a public official, namely an Assistant Officer I of the Correctional Services Department. At that time, D1 held the post of Officer-in-Charge of the Construction and Maintenance Unit (CMO) at Tong Fuk Correctional Institution (TFCI). Between 16 July 2020 and 23 October 2020, D1 and D3 conspired together for D1 to wilfully and intentionally misconduct himself in the course of or in relation to his public office without reasonable excuse or justification, namely:

(a)  conniving in the unauthorised possession and use of a mobile telephone in TFCI by D3 (a prisoner); and

(b)  rendering assistance to D3 in improving the signal reception of a SIM card used in the said mobile telephone.

Charge 2

(2)  D2 was a public official, namely an Assistant Officer II of the Correctional Services Department. He held the post of Assistant to the Officer-in-Charge of the Construction and Maintenance Unit at Tong Fuk Correctional Institution. Between 16 July 2020 and 23 October 2020, D2 to D5 conspired together for D2 to misconduct himself in the course of or in relation to his public office without reasonable excuse or justification, namely:

(a)  conniving in the unauthorised possession and use of a mobile telephone in Tong Fuk Correctional Institution by D3 (a prisoner); and

(b)  introducing unauthorised cigarettes into the Tong Fuk Correctional Institution for D3 (a prisoner).

Charge 3

(3)  Between 18 August 2020 and 20 August 2020, Li Chun Ping was a prisoner at Tong Fuk Correctional Institution. During those dates, both Li Chun Ping and D3 were inmates of Dormitory F3 in that institution. D3 was a participant in a betting game inside the Dormitory. Li Chun Ping did not participate in the game. When the suspected breach of Prison Rules was investigated by the Correctional Services Department, Li Chun Ping offered himself in substitution of D3 as the participant. Li Chun Ping subsequently pleaded guilty to the breach of Prison Rules during disciplinary proceedings.

5.D2 and D5 pleaded guilty to Charge 2 on 11 May 2022. The trial only involves D1, D3 and D4.

The Prosecution Case

6.The Prosecution’s case is as follows:

Background

(1)  TFCI is a medium security institution of the Correctional Services Department (CSD) housing convicted male adults.

(2)  D1 was at all material times a public officer. At all material times, he was an Assistant Officer I of the CSD posted to the Centre Division of TFCI and was the officer-in-charge of the CMO.

(3)  D2 was also a public officer. At the material times, he was an Assistant Officer II posted to the Centre Division of TFCI. From 29 June 2020, D2 was assigned to work at the CMO or Gardening. He was also the assistant to D1 and would act as the officer-in-charge of the CMO when D1 was on leave.

(4)  Between 20 March 2018 and 23 October 2020: D3 was a prisoner, serving his sentence at TFCI. His bed space was No 14 in Dormitory F3. D3 was formerly known as LAU Yin Chun and his nickname is “Luk Tou 六頭”.

(5)  D4 served his sentence in TFCI from 8 August 2018 to 6 May 2020. His designated bed was also in Dormitory F3.

(6)  D5 served his sentence in TFCI from 4 January 2019 to 3 September 2020. Between 12 July 2019 and 7 August 2020, his designated bed was mostly in Dormitory F3.

(7)  Mr Ho Siu Fung was the Principal Officer of the Centre Division in TFCI, whilst Mr Li Siu On was the Principal Officer of the Security Unit of TFCI.

(8)  Prisoners in TFCI are assigned to work in different workshops, including the CMO. Between 16 July 2020 and 23 October 2020, D1 and D2 were responsible for the supervision of the discipline and activities of prisoners assigned to work at the CMO.

(9)  D3, D4 and D5 were assigned to work at the CMO during the following periods:

(1)  D3: 21 March 2019 to 23 October 2020;

(2)  D4: 10 August 2018 to 6 May 2020;

(3)  D5: 24 April 2020 and 7 August 2020

(10)  The conduct of CSD officers and prisoners are governed by the Prisons Ordinance, Cap 234 and the Prison Rules, Cap 234A.

(11)  Prison officers are prohibited from bringing their personal electronic or communication devices, including mobile telephones into TFCI whilst on duty. They are allowed to bring 20 cigarettes for self-consumption. These cigarettes cannot be the brands “Wealth” and “Gentori”. The cigarettes can be consumed by the CSD officers in designated areas where they are not in contact with any prisoner.

(12)  Under section 18 of the Prisons Ordinance, except where authorised by the Commissioner of the CSD, CSD officers are not allowed to convey to any prisoner any unauthorised articles. Under rule 239 of the Prison Rules, it is a disciplinary offence if a CSD officer communicates with any ex‑prisoner without proper authority from the management of the CSD, or allows any undue familiarity between a prisoner and himself.

(13)  Prisoners in TFCI are allowed to receive certain articles specified on the List of Approved Hand‑in Articles (the List) from visitors. Cigarettes and mobile telephones are not on the List. Cigarettes are valuables in prison. Prisoners can use their wages earned during their prison term to purchase cigarettes of two specific brands, namely “Wealth” and “Gentori”, through the arrangement of the CSD.

Investigation

Charge 1

(14)  A covert investigation was mounted by the ICAC. On 22 October 2020, an audio recording device was planted to record the conversations that took place at the CMO of TFCI between 0900 hours to 1215 hours when D1 was on duty (the covert audio recording). The Prosecution alleges that:

(a)  the audio recording shows that D1 met D3 at the CMO;

(b)  D3 told D1 that there appeared to be a signal reception issue with his CSL SIM card and that he could not make any telephone calls;

(c)  D1 offered to check with CSL on D3’s behalf;

(d)  Since D1 was on vacation leave that afternoon, he would ask D2 to inform D3 the result of his enquiry with CSL;

(e)  D3 showed his mobile telephone to D1 and stated that he could not access the internet. D1 told D3 to be low key with the mobile telephone;

(f)  D3 told D1 that he had a few other SIM cards, including one from China Mobile.

(15)  On 23 October 2020, the ICAC operation turned overt. D3 was intercepted and a body search was conducted. At that time, D3 was holding a prisoner’s bag. Inside the bag, the following items were found and seized:

(a)  a black foldable mobile telephone (the Telephone). The Telephone is about 6 cm x 3 cm in size and can be used to send and receive SMS messages in simplified Chinese characters but had no access to the internet;

(b)  A prepaid SIM card from China Mobile Hong Kong Company Limited inside the Telephone. The telephone number is 5608 7429 (the China Mobile number). This SIM card was activated on 21 August 2020;

(c)  2 unopened packets of cigarettes of the brand “Marlboro” and Mevius;

(d)  An opened packet of cigarettes of the brand “Marlboro” which contained 7 cigarettes;

(e)  5 lighters

(16)  The interception and search of D3 were filmed.

(17)  On the same day, a search was then conducted at the CMO workshop. A black USB cable and a DVD player with a USB port were found inside a tool room. These items were seized in D3’s presence.

(18)  The Prosecution asserts that between 21 August 2020 and 23 October 2020, during his remand, D3 used the China Mobile number to exchange a total of 41 telephone calls and 64 SMS messages with D4, D5, Wong Yuen Man, D3’s parents, D3’s brother and D3’s sister. WONG Yuen Man sent Mark Six Lottery results on 8 October and 22 October 2020 to D3 by 2 SMS messages to the China Mobile number.

(19)  Investigations also revealed that a prepaid SIM card from CSL Mobile Limited (CSL) with the mobile telephone number 6598 7379 (the CSL number) was activated on 16 July 2020. The Prosecution alleges that between 16 July and 23 October 2020, during his remand at TFCI and whilst working under D1’s supervision, D3 used the CSL number to exchange a total of 2,234 telephone calls and 1,825 SMS messages with D4, D5, LAW Kin Wing, TSANG Sze Wing Rain, WONG Sin Yu, WONG Yuen Man, LI Chun Ping, D3’s parents, D3’s brother and D3’s sisters.

(20)  Between 6 March and 23 October 2020, D3 did not submit any written request to the Rehabilitation Unit to make phone calls.

(21)  On 23 October 2020, D1 was also arrested by the ICAC. His mobile telephone with the telephone number 6682 6288 (D1’s Telephone) was seized. A subsequent subscriber check revealed that 6682 6288 was registered in D1’s name. There were 2 calls from D1’s Telephone to the CSL hotline on 23 October 2020. Those calls were recorded:

(a)  at 1018 hours to the CSL hotline at 2888 2123. A Mr Yeung enquired about the prepaid SIM card 6598 7379 (ie the CSL number);

(b)  At 1022 hours to the CSL hotline at 179179. A Mr Yeung complained that the prepaid SIM card of 6598 7379 (the CSL number) with a prepaid value of over $400 seemed to disconnect all the time and the reception had deteriorated. Mr Yeung confirmed that this prepaid SIM card was used by his family member in a conventional telephone on Lantau Island. The prepaid SIM card was confirmed to be still active and the system was normal.

(22)  On the same day, a search was conducted at D1’s home, CSD197A (9/2012) form with “6598 7379” (ie the CSL number) written at the back was found and seized.

Charge 2

(23)  Between 29 June 2020 and 5 August 2020, D5 worked at the CMO under D2’s supervision. Between 29 June and 23 October 2020, D3 worked at the CMO under D2’s supervision. On 4 September 2020, D4 set up a chat group on WhatsApp called the “Chit Chat Group”. D2 and D5 were both members of the group.

(24)  A laminated paper recording the incarceration details of D5 were found in a plastic box next to D3’s bed in Dormitory F3.

(25)  The Prosecution alleges that the telephone records show that D3 had used the China mobile number and the CSL number to communicate with various parties when he was working at the CMO under D2’s supervision from 18 July to 23 October 2020:

(1)  Between 3 September and 5 September 2020, D3 sent 3 SMS messages to D5 with the CSL number, requesting D5 to recharge the CSL SIM card;

(2)  At about 1623 hours on 8 September 2020, D5 first recharged $300 to his Octopus card number 08983031(2) at a 7‑Eleven store and then recharged the CSL SIM card at a CSL retail shop in Tsing Yi with his Octopus card;

(3)  At about 2151 hours on 8 September 2020, D3 sent a SMS message to D5 with the CSL number, asking D5 to send messages to him by using simplified Chinese characters;

(4)  On 3 October 2020, D3 sent a SMS message to D5 with the CSL number, requesting D5 to recharge the CSL SIM card;

(5)  On 18 and 19 October 2020, D3 sent 2 SMS messages to D5 with the CSL number, stating that it was about time to buy a new CSL SIM card for him because it was easier to recharge CSL SIM cards.

(26)  On 23 October 2020, D5’s Octopus card number 08983031 was seized from D5.

(27)  The Prosecution also asserted that WhatsApp messages were exchanged between D2, D4 and D5:

(1)  On 4 September 2020, after D4 set up the “Chit Chat Group”, D2 changed the group’s name to “CMO”. The WhatsApp messages were retrieved from D2 and D5’s telephones;

(2)  Between 1252 and 1306 on 24 September 2020, messages were exchanged between D2, D4 and D5 in the WhatsApp group. D5 complained about receiving call# from D3 early in the morning. D2 asked whether D3 called them every day and said D3 was very bored. D4 asked D2 to tell D3 that he had dealt with $5,000 for D3 and asked D2 not to talk to D3 about their complaints. When D2 offered to ask D3 not to call them in the morning, both D4 and D5 asked D2 not to do so;

(3)  Between 1705 and 1708 hours on 24 September 2020, D2 complained that D3 always stayed in the room to talk on the telephone. D4 replied that he did not know what D3 was doing.

(28)  Further, the Prosecution alleged that there were WhatsApp messages between D4 and D5:

(1)  Between 1500 and 1504 hours on 6 September 2020, D5 complained to D4 that D3 had asked D5 to do things without paying him. Upon D4’s enquiry, D5 told D4 that he has to recharge for the phone bill for D3.

(2)  At 1821 hours on 8 September 2020, D5 told D4 that he had topped up $309 for D3 by using his Octopus card and that D3 also enquired with D5 whether D4 had contacted D5. D5 told D4 that he had replied D3 that D4 had not contacted D5 yet.

(29)  In addition, the Prosecution also relied on WhatsApp messages between D5 and D5’s father:

(1)  Between 1513 and 1517 hours on 5 October 2020, D5 asked his father to recharge the CSL SIM card in the sum of $500. D5’s father promised to do so;

(2)  At 1244 hours on 6 October 2020, D5’s father told D5 that he was recharging $500 and a message will be received;

(3)  Between 1513 and 1517 hours on 22 October 2020, D5 asked his father to recharge for D3. D5’s father replied that $50 was recharged.

(30)  CSL recharge history of the CSL number showed that it had been recharged a total sum of $1,400 on 17 occasions since it’s activation on 16 July 2020, including:

	Date	Payment Method	Amount	By whom
1	8 September 2020	Octopus	$300	D5
2-4	21 August 2020	Vouchers	$300	Unknown
5-7	30 July 2020	Vouchers	$300	Unknown
8-17	6 October 2020	Vouchers	$500	D5’s father

(31)  China Mobile Recharge records of the China Mobile number showed that it had been recharged a total sum of $300 on 2 occasions since its activation on 21 August 2020:

(a)  22 October 2020 $50 by D3’s sister;

(b)  23 October 2020 $250

(32)  The Prosecution says that:

(1)  On 17 September 2020, D3 sent 2 SMS messages to D5 with the CSL number, instructing D5 to ask D2 to buy him a packet of cigarettes on the following day;

(2)  On 18 and 19 September 2020, D3 sent 2 SMS messages to D5 with the CSL number, instructing D5 to ask D2 to buy him a packet of cigarettes the following day;

(3)  On 22 September 2020, D3 sent a SMS message to D5 with the CSL number, instructing D5 to ask D2 to buy him a packet of cigarettes the following day;

(4)  Between 2113 hours and 2258 hours on 22 September 2020, messages were exchanged between D2 and D5 in the WhatsApp group. D5 asked D2 to buy 2 packets of cigarettes for D3. D2 replied that he was worried that he did not have the chance to see D3 at the CMO and said he had taken an e‑cigarette back for D3. D5 thanked D2. D2 said he would buy it first and give it to D3 when he saw him. When D5 shared information about e‑cigarettes, D2 said he was looking for ordinary e‑cigarettes and that the one he took back the last Saturday was not yet finished. D5 reminded D2 to buy 2 packets of cigarettes for D3 the following day;

(5)  On 23 September 2020, D3 sent 2 SMS messages to D5 with the CSL number, instructing D5 to ask D2 to buy him a packet of cigarettes the following day;

(6)  Between 0002 and 1252 hours in 24 September 2020, messages were exchanged between D2 and D5 in the WhatsApp group. D5 asked D2 whether he had purchased the 2 packets of cigarettes for D3. D2 replied it had been done, as he was in the CMO;

(7)  Between 1307 and 1313 hours on 24 September 2020, messages were exchanged between D2 and D4 in the WhatsApp group. D4 asked D2 if he could pass the cigarettes to D3, D2 replied in the affirmative. D4 said he had 11 cartons of cigarettes to pass to D3. D2 reassured D4 that he could pass them to D3 whenever possible and told D4 that D3 now smoked e‑cigarettes in the workshop;

(8)  At about 1918 hours on 9 October 2020, D2 purchased 1 packet of Mevius cigarettes at 7‑Eleven, Po Yan Building, Tai Po. The CCTV of this 7‑Eleven was produced;

(9)  At 2306 hours on 13 October 2020, D5 asked D2 in the WhatsApp group to buy a packet of Mevius cantaloupe flavoured cigarettes for D3 the following day;

(10)  Between 2026 and 2108 hours on 14 October 2020, D2 and D5 exchanged WhatsApp messages. D5 asked D2 to buy cigarettes for D3. D2 requested D5 to ask D4 to bring D2 the cigarettes as it was troublesome for him to buy cigarettes every time and the cigarettes might not reach him. D5 suggested that D2 should buy a few cartons in advance and money would be paid to D2 immediately. D2 agreed;

(11)  At 1829 hours on 15 October 2020, D2 and D5 exchanged WhatsApp messages. D2 told D5 that he would deliver cigarettes to CMO later and would talk to D3 about it. D5 said D3 called him the previous day. D2 said he would talk to D3 about it and D5 agreed;

(12)  At 0522 hours in 19 October 2020, D5 asked D2 in the WhatsApp group to buy 2 packets of cantaloupe flavour Mevius cigarettes for D3;

(13)  Between 2050 and 2152 hours on 22 October 2020, D2 and D5 exchanged WhatsApp messages. D5 asked D2 to buy 2 packets of cantaloupe Mevius cigarettes for D3 the following day;

(14)  Between 0024 and 0027 hours on 23 October 2020, D3 sent 3 SMS messages to D5 with the CSL number, enquiring whether D5 had asked D2 to buy cigarettes for him and D2’s reply;

(15)  At about 0604 hours on 23 October 2020, D2 purchased 2 packets of Mevius cigarettes at Circle K, Wan Tau Tong Shopping Centre, Tai Po before reporting duty at TFCI. The CCTV of this Circle K was produced;

(33)  D1 and D2 never reported the unauthorised possession by prisoners of the Telephone and/or cigarettes to the CSD. The CSD does not allow its officers to give their own cigarettes to prisoners. When CSD officers find any prisoner had violated prison discipline, eg possession of unauthorised articles, they must stop them immediately and report it to their supervisors.

Charge 3

(34)  The Prosecution says that:

(1)  In the evening of 18 September 2020, D3 and 3 other prisoners gathered inside Dormitory F3 of TFCI to play a betting game with homemade chess pieces (the Game) which was prohibited under section 61(p) of the Prison Rules. Other prisoners, including Li Chun Ping gathered around to watch;

(2)  When a CSD officer patrolled near the gate of Dormitory F3 at about 1900 hours, the crowd dispersed. The chess pieces were seized;

(3)  In the morning of 19 August 2020, D3 asked the prisoners in Dormitory F3, including Li Chun Ping, if anyone was willing to stand in for him in the anticipated disciplinary proceedings and offered to pay several thousand dollars to that person as remuneration. Li Chun Ping agreed to stand in for D3 by admitting to the CSD that he was one of the participants in the Game because he was about to be discharged and wanted to earn some money. Upon D3’s request, Li Chun Ping wrote down his number of his Bank of China account on a piece of paper and gave it to D3;

(4)  When CSD officers conducted an inquiry later on the same day, Li Chun Ping admitted under caution that he was one of the players of the Game on 18 August 2020 and signed a record of interview. Li Chun Ping was then transferred to another cell and never returned to Dormitory F3 before his release;

(5)  Li Chun Ping was later charged with an offence against prison discipline. On 20 August 2020, disciplinary proceedings were held where Li Chun Ping pleaded guilty, and was convicted and sentenced;

(6)  Whilst Li Chun Ping was remanded in another cell, D3 approached Li Chun Ping and provided him with the mobile numbers of D3’s brothers to arrange for payment of remuneration upon Li Chun Ping’s release;

(7)  On 7 September 2020, Li Chun Ping was released from TFCI. His mobile telephone number was 5117 9586. His BOC account was activated. On 9 September 2020, Li Chun Ping contacted one of D3’s brothers and was given the CSL number as D3’s telephone number;

(8)  Between 9 September and 17 October 2020, Li Chun Ping called D3, who was still in TFCI several times to ask for remuneration. In mid-October 2020, D3 asked Li Chun Ping to contact D5 at 6898 1997 for payment;

(9)  On 17 October 2020, Li Chun Ping sent 2 WhatsApp messages to D5. Li Chun Ping claimed that he was D3’s friend, provided his account number to D5 for deposit of money on D3’s behalf. Li Chun Ping also asked D5 when the money would be deposited;

(10)  At about 1144 and 1146 hours on 20 October 2020, D3 sent 2 SMS messages to D5 with the CSL number, instructing D5 to deposit $2,000 into a Hong Kong Jockey Club account number 25078248. D3 also asked D5 to inform him and Li Chun Ping after the deposit;

(11)  At about 1203 hours on 20 October 2020, Li Chun Ping sent another WhatsApp message to D5 asking whether D5 was going to deposit the money for him;

(12)  On 21 October 2020, D5 transferred $2,000 to Li Chun Ping’s bank account. At about 1738 hours on 21 October 2020, D5 sent a deposit slip showing the deposit of $2,000 to Li Chun Ping. Li Chun Ping confirmed receipt of the message;

(13)  At 2010 hours on 21 October 2020, D3 sent 2 SMS messages to D5 with the CSL number, enquiring whether the money had been deposited. D5 replied in the affirmative.

Arrest

(35)  On 23 October 2020, D1, D2, D4 and D5 were arrested and interviewed under caution. D3 was interviewed under caution at Stanley Prison on the same day.

The Defence Case

7.A large part of the Prosecution’s case was not in dispute. Extensive evidence was admitted under section 65C of the Criminal Procedure Ordinance, Cap 221 and is set out in 5 sets of Admitted Facts, including:

(1)  TFCI is a medium security prison housing convicted male adults;

(2)  The layout of TFCI;

(3)  The position and role of Principal Officer Li Siu On at TFCI;

(4)  At all material times, D1 and D2 were CSD officers who worked in TFCI and were hence in public office;

(5)  D1 was the officer-in-charge of the CMO of TFCI and D2 was D1’s assistant;

(6)  The prisoners’ working hours at the CMO in TFCI;

(7)  The staff and work shift records of D1 and D2;

(8)  The provisions of the Prisons Ordinance and the Prison Rules;

(9)  D3, D4, D5 and Li Chun Ping were all prisoners at TFCI and their periods of incarceration. Their bed spaces were in Dormitory F3;

(10)  D1’s nickname “Luk Tau”;

(11)  The penal records of D3, D4 and D5;

(12)  The period that D3 was assigned to work at the CMO under the supervision of D1 and D2;

(13)  The photographs of D1’s mobile telephone number 6682 6288, the serial number and call logs of that telephone;

(14)  The registration of D4’s mobile telephone number 9588 2770;

(15)  The CSL Hotlines enquiries and the audio recordings and transcripts of the same;

(16)  The CCTV footages of the 7‑Eleven and Circle K stores;

(17)  Li Chun Ping’s bank statement which showed a transfer deposit of $2,000 on 21 October 2020;

(18)  The Mark Six results on 8 October 2020 and 22 October 2020 and the winning sequence of numbers;

(19)  The results of the 2020/2021 UEFA Europa League football matches on 23 October 2020;

(20)  The transaction records of D5’s Octopus card;

(21)  The call records of mobile telephone number 6598 7379 between 16 July 2020 and 23 October 2020;

(22)  The call records of D1’s mobile telephone number 6682 6288 between 17 and 23 October 2020;

(23)  The subscriber record, SIM card reference record, call records of D2’s mobile telephone number 5340 5825;

(24)  The subscriber record, SIM card reference and call records of the mobile telephone number 6901 0617 of D3’s brother WONG Yin Lung from 20 June to 23 October 2020;

(25)  The subscriber record of mobile telephone number 6698 8665 of WONG Sin Yu (a prosecution witness);

(26)  The SIM card reference record, call records from 21 August to 23 October 2020 of the prepaid mobile telephone SIM card number 5608 7429;

(27)  The subscription of LAU Yin Ching (D3’s sister) to mobile telephone number 5108 4690 between 10 August 2019 and 22 June 2021;

(28)  The subscription of WONG Sang Choy (D3’s father) to mobile telephone number 6349 8187 between 13 June 2014 and 22 June 2021;

(29)  The subscription of NG Siu Chi (D3’s mother) to mobile telephone number 6301 0269 between 13 January 2009 and 22 June 2021;

(30)  The prepaid SIM card with telephone number 5514 5212 used by LAW Kin Wing (a prosecution witness) between 5 March 2019 and 22 June 2021;

(31)  The SMS records of 5608 7429 between 21 August and 23 October 2020;

(32)  The SMS records of D3’s sister’s telephone number 5108 4690 between 16 July and 23 October 2020;

(33)  The top up record of 5608 7429 in October 2020;

(34)  D4’s subscription of the mobile telephone number 9588 2770 between 15 May 2020 and 23 March 2021;

(35)  The call records of D4’s telephone number 9588 2770 between 15 May and 23 October 2020;

(36)  The call forward records of D4’s telephone number 9588 2770 between 15 May and 23 October 2020;

(37)  The call forward records of D4’s telephone number 9588 2770 between 17 May and 23 October 2020;

(38)  The prepaid mobile telephone number 6898 1997 used by D5 between 7 July 2018 and 23 March 2021;

(39)  The SIM card reference record of the telephone number 6898 1997 used by D5;

(40)  The call records of D5’s telephone number 6898 1997 between 3 September and 23 October 2020;

(41)  D3’s brother, WONG Yin Kit’s subscription to mobile telephone number 6056 6694 between 2 June 2020 and 23 March 2021;

(42)  The SIM card reference record of D3’s brother’s telephone number 6056 6694;

(43)  The subscription of mobile telephone number 6541 8876 by TSANG Shuk Yee (family member of TSANG Sze Wing Rain, a prosecution witness) between 23 February 2019 and 23 March 2021;

(44)  The subscription to mobile telephone number 6791 6789 by D3’s sister WONG Yin Lin between 1 November 2017 and 23 March 2021;

(45)  The subscription to mobile telephone number 5117 9586 by Li Chun Ping between 7 September 2020 and 8 April 2021;

(46)  The position and role of Superintendent of CSD, LAU Kee Yan Ronald in TFCI and his responsibility to conduct adjudication, make determination and order punishment in respect of breaches of Prison Rules;

(47)  The procedure for prisoners to make telephone calls in TFCI;

(48)  No written request was made by D3 to make telephone calls between 6 March 2020 and 23 October 2020;

(49)  The seizure of D2’s mobile telephone and SIM card with telephone number 5340 5825;

(50)  Photographs of D2’s mobile telephone depicting the messages exchanged between 4 September 2020 and 19 October 2020 in the WhatsApp Group named “CMO” where D2, D4 and D5 were members;

(51)  A compact disc containing 108 audio files retrieved from the WhatsApp group named “CMO” for the period from 4 September and 19 October 2020;

(52)  A table of WhatsApp text messages and transcripts of the audio messages exchanged in the WhatsApp group named “CMO” from 4 September to 23 October 2020;

(53)  A compact disc containing 62 audio files extracted from D2’s telephone. These are communications from the WhatsApp communications between D2’s telephone (5340 5825) and D5’s telephone number (6898 1997) from 8 September to 23 October 2020;

(54)  14 photographs of D2’s mobile telephone depicting the WhatsApp messages exchanged between D2’s telephone number (5340 5825) and D5’s telephone number (6898 1997) from 8 September to 23 October 2020;

(55)  A table of WhatsApp text messages extracted from D2’s telephone and transcripts of the audio messages exchanged between D2 and D5 between 8 September and 23 October 2020;

(56)  The contact records retrieved from the telephone seized from the bag held by D3;

(57)  The SMS records of mobile number 5608 7429;

(58)  The seizure of other telephones and SIM cards on 24 October 2020, including those of:

(a)  D3’s father WONG Sang Choy (formerly known as LAU Sang Choy), telephone number 6349 8187;

(b)  D3’s mother with telephone number 6301 0269;

(c)  D3’s twin brother WONG Yin Lung (formerly known as LAU Yin Lung) with telephone number 6901 0617;

(d)  D3’s younger brother WONG Yin Kit (formerly known as LAU Yin Kit) with telephone number 6056 6694;

(59)  The arrest of D5 at his residence by the ICAC on 23 October 2020;

(60)  The seizure of D5’s mobile telephone and 2 SIM cards with telephone number 6898 1997 and D5’s Octopus card numbered 08983031(2);

(61)  9 contact record entries extracted from D5’s mobile telephone;

(62)  A compact disc containing 62 audio files and one video file retrieved from the WhatsApp messages between the telephones of D2 (5340 5825) and D5 (6898 1997) from 8 September to 23 October 2020;

(63)  A table of WhatsApp messages and transcripts between the telephones of D2 (5340 5825) and D5 (6898 1997) from 8 September to 23 October 2020;

(64)  SMS messages exchanged between mobile numbers 6598 7379 and 6898 1997 (D5’s number) from 3 September to 21 October 2020;

(65)  SMS records exchanged between mobile numbers 5608 7429 and 6898 1997 (D5’s number) on 23 October 2020;

(66)  A compact disc containing 117 audio files from the WhatsApp messages between 9588 2779 (D4) and 6898 1997 (D5) from 3 September to 9 October 2020;

(67)  A table of the WhatsApp text messages and transcripts of the audio messages exchanged between D4 (9588 2770) and D5 (6898 1997) from 3 September to 9 October 2020;

(68)  The WhatsApp messages exchanged between D5 (6898 1997) and Li Chun Ping (5227 9586) from 17 October to 21 October 2020 with one image file attachment;

(69)  The computer certificate of the CSL SIM card with mobile number 6598 7379, its activation date and its recharging record;

(70)  D5 recharging the CSL SIM card with mobile number 6598 7379 on 8 September 2020 in the amount of $300 with his Octopus card;

(71)  A compact disc containing the video footage of D5 recharging the CSL SIM card with mobile number 6598 7379 at a CSL retail outlet;

(72)  A list of calls and SMS exchanged between mobile number 6598 7379 and D4, D5, D3’s parents, D3’s siblings, Li Chun Ping, WONG Sin Yu, WONG Yuen Man, LAW Kin Wing;

(73)  The activation date of prepaid the China Mobile SIM card with telephone number 5608 7429;

(74)  A list of calls and SMS messages between the China Mobile number 5608 7429 and D4, D5, D3’s parents, D3’s siblings and WONG Yuen Man;

(75)  D5’s bank statement showing a transfer deposit of $2,000 to Li Chun Ping;

(76)  The SMS messages containing the winning Mark Six numbers in 8 and 22 October 2020 sent by WONG Yuen Man (9085 9983) to mobile number 5608 7429 on 8 October and 22 October 2020;

(77)  Video footages of D2’s purchase of cigarettes at the 7‑Eleven store;

(78)  Video footages of D2’s purchase of cigarettes at the Circle K store;

(79)  The search of the telephone and seizure of the China Mobile SIM card (5608 7429) found during D3’s search;

(80)  The adjudication hearing and report of Li Chun Ping in respect of the Game;

(81)  The search of D1’s residence on 23 October 2020 and the seizure of D1’s telephone and a CSD197A (9/2012) form with “6598 7379 CSL” written on the back;

(82)  The chain of evidence of the above mentioned items.

8.D1, D3 and D4 deny that they were involved in any of the alleged conspiracies. The main issues are:

(1)  Whether D1 had knowledge of the Telephone, found during D3’s search;

(2)  Whether D1 assisted D3 in improving the reception of the telephone found during D3’s search;

(3)  Whether D3 had knowledge of and was in possession of the telephone and the cigarettes found during the search;

(4)  Whether D3 had used the Telephone;

(5)  Whether D3 and D4 had conspired with D2 and D5 to introduce unauthorised cigarettes into TFCI for D3;

(6)  Whether D3 and D4 had conspired with D2 in his connivance of the unauthorised possession and use of the telephone by D3 in TFCI;

(7)  Whether D3 had participated in the Game; and

(8)  Whether D3 had requested Li Chun Ping to admit to participating in the Game in his stead for reward.

Events leading to the Present Application

9.As was explained above, the ICAC planted an audio recording device to record the conversations of the CSD officers and prisoners in the CMO. Prior to the commencement of the trial, D1’s counsel complained that the Prosecution had failed to make disclosure of the details of that audio recording device, including the brand and the model, where it was planted and the length of the recording. The Prosecution claimed that the method of surveillance was subject to public interest immunity, whereupon D1’s counsel abandoned his complaint.

10.The trial then proceeded without event until day 6. One of the main issues in the trial is the identities of the speakers in the covert audio recording. On day 5 of the trial, the Prosecution called Mr LI Siu On (Li), Principal Officer of CSD at TFCI to identify the voices in the covert audio recording. Li told the Court that he was able to recognise the voice of D3 because he had listened to the audio recordings of D3’s prisoner visits and D3 had greeted him during Mr Li’s weekly patrols in TFCI.

11.Li’s evidence could not be completed on day 5. He was warned not to discuss these proceedings with anyone during the adjournment.

12.That evening at around 1953 hours, Ms Rosa Lo (the Prosecutor) had the following conversation with Ms Krystie Cheng, the officer in charge of this case (the OC Case).

OC Case	The Prosecutor
Li wish to have a chance to clarify: when he did voice ID, he mainly relied on the visit recordings that he listened intensively around that period. The routine patrol conversations were not he relied on, that only gave him an impression of D3 (19:53)
Can ask him about it when re‑exam? (19:53)
	I think we can’t talk to him now (19:53)
I didn’t talk to him… just CSD Liaison expressed such view (19:54)
	IC. Scared the sxxx out of me (19:56)
	This kind of communication should also be stopped too (19:56)

13.The following morning (day 6) of the trial, the Prosecutor quite rightly asked the OC case to stay outside the Courtroom. The Prosecutor then informed the Defence about her WhatsApp communications with the OC Case the previous evening.

14.During this time, the OC Case’s subordinate, Ms Salina Siu was inside the Courtroom. Ms Siu had the following WhatsApp communication with the OC Case:

OC Case	Salina Siu
Let me know what’s happening inside (09:23)
Li is in the room near Court 6. I’m in the other room (09:23)
	OK! Rosa is talking to them at last night issue (09:24)
	The defence just replied “he is lying” (09:25)
	Rosa showed them wtsapp conversation [emoji] [emoji] (09:25)
	Court haven’t start yet Rosa just told D1’s counsel about Johnny (09:30)
	They are still finding ways to make copy, Court haven’t start yet (10:08)

15.The Prosecutor then reported the matter to the Court. It was explained that the OC Case never spoke to Li; she only spoke to the Court CSD Liaison officer, Mr Wong Pak Wing (the Liaison Officer). The Defence was then given an opportunity to cross-examine the OC Case about the circumstances of her conversation with the Liaison Officer.

16.The OC Case testified that she received a telephone call from the Liaison Officer earlier at about 1830 hours on the same evening. She stated that they only spoke for a few minutes. The OC Case’s mobile telephone was handed over for the parties for inspection. The call record showed that the Liaison Officer had called the OC case at 1845 hours the previous evening and that the call lasted for 22 minutes. The OC Case sent the WhatsApp messages to the Prosecutor after this conversation.

17.The OC case further disclosed during her testimony that the Liaison Officer has been sending CSD officers to sit in the public gallery to monitor the trial and report on the proceedings. The Court then discovered that there were 2 CSD officers on duty in the public gallery that morning.

18.In those circumstances, the Defence was given an opportunity to cross examine the 2 CSD officers who were sitting in the public gallery. One of them confirmed that the Liaison Officer had instructed him to attend court and take notes of the proceedings. This officer’s note was shown to the parties (MFI‑3).

19.The Liaison Officer then attended court to testify. D3’s counsel has helpfully summarised the evidence of the Prosecutor and the Liaison Officer in respect of the telephone call in a table:

OC Case	Liaison Officer (Wong)
When I received the call, I was on my way home. I was buying groceries from the wet market. I talked with Wong along the way. It was raining and I was carrying a lot of things. I have children and when I got home I had to do chores and look after my children.   I wasn’t expecting the call from Wong. I just listened to what he had to say to understand what sort of message he would like me to deliver. I had some free time to deal with this matter at 7:55 pm. I wanted to pass the message from the CSD to the prosecutor plus my own understanding
	I enquired about the procedures and progress of the case in court, upcoming witnesses arrangement, progress and procedure of Li’s evidence, court appearance arrangement for Li on the next day and whether he has to wait in court at 9:30.
Wong was aware of what happened in court from what he has been told by his colleagues who listened to the proceedings in court. On first day of trial I saw a gentleman in the public gallery. I asked Ms Siu to confirm if he was a CSD officer and she did. He had been in court every day since but not today.   Wong said he was not sure whether Li has expressed himself clearly in court as to the voice identification. He asked me if I could ask the prosecutor to give Li an opportunity to clarify his evidence during re‑examination. I said I would ask the prosecutor if there is such a need.   Wong did not mention what Li wanted. I made a mistake when I typed my message beginning with “Li wish”. Maybe I was thinking that Li would like to relay to the prosecutor, I replied by saying I would relay that to the prosecutor.	I sent one officer to sit in court every day and report to me after court.              I asked the officer who sat in court what Li was challenged on. I was told that it was in respect of the voice identification. I did not ask further. That is why I asked the OC case if the prosecutor could ask about it in re‑examination.     I mentioned during Li’s testimony, Li was questioned by one of the defence counsel as to whether he was making things up regarding the voice identification. I therefore asked the OC Case whether the prosecutor would deal with this issue during re‑examination.   I did not tell the OC case that Li could recognise the voice because of the visits and not during the routine patrol.
	I called Li afterwards to tell him that he has to return to his work post after finishing his court duties. Some security issues arose in the institution the previous week. The main purpose of the call to Li was for him to follow up those issues when he goes back to work. I reminded him that he had to attend court the following day and that he was not to speak to anyone about this case.

20.The Liaison Officer’s mobile telephone was handed over to the parties for inspection. The call record shows that the Liaison Officer called Li as soon as he finished speaking to the OC Case (at 7:18 pm) and spoke to Li for over 10 minutes.

21.Li resumed his testimony on day 7 of the trial. He was cross-examined about his telephone call with the Liaison Officer. Li stated that there was a security incident in Pik Uk Prison and the Liaison Officer had instructed Li to follow up the matter. The Liaison Officer knew that Li had not yet completed his evidence, reminded him not to speak to anyone about this case and to be punctual in attending court.

22.Li’s personal and work telephones were handed over to the parties for inspection. Li then disclosed that he had deleted all the call records on these telephones. He explained that he had a habit of deleting all his call records every day to prevent security risks. However, inspection of his telephones revealed that they contained:

(1)  photographs of the HKID cards of Li’s wife, his son and domestic helper;

(2)  Li’s HSBC bank account number;

(3)  D3’s prisoner visit record taken at 7:46 pm the previous evening;

(4)  A document entitled “Internal Investigation Note”; and

(5)  The front page of Li’s witness statement in this case.

23.Li agreed to retrieve the call records of his personal telephone from SmarTone. The Prosecution would obtain the call records of Li’s work telephone from China Mobile. Li was informed that the police could retrieve deleted messages from his mobile telephones. He was happy to hand his telephones to the police but exercised his right not to provide his passwords. As a result, the police could not retrieve any messages from Li’s telephones.

24.On the following day (day 8, 19 December 2022), the Prosecutor informed the Court that Li had submitted a medical chit. He had been granted 2 days’ sick leave for anxiety and depression. The hearing was adjourned to 21 December 2022.

25.On day 9 (21 December 2022), the Court was informed that Li’s sick leave for anxiety and depression has been extended until 28 December 2022. The hearing was further adjourned to 29 December 2022.

26.On day 10 (29 December 2022), the Court was informed that Li’s sick leave for anxiety and depression had been extended until 6 January 2023 (which was 2 days after the scheduled fixture for this case). The case was further adjourned to 3 February 2023 for mention.

27.On day 11 (3 February 2023), the Court was informed that Li’s sick leave concluded on 28 January 2023 and he has resumed duty. The case was fixed for hearing on 27 March 2023.

28.Li resumed his testimony on day 12 (27 March 2023). By this time, the deleted call records were available.

29.A summary of all the disclosed call records revealed:

Date/Time	Caller/Event	Recipient	Duration
5/12/2022	Liaison Officer (Personal mobile)	OC Case (Mobile)	6’00”
6/12/2022	Liaison Officer (Personal mobile)	OC case (Mobile)	1’00”
7/12/2022	Liaison Officer (Personal mobile)	OC case (Mobile)	0’08”
13/12/2022 09:40-16:30	PW9 testified
13/12/2022 18:55-19:17	Liaison Officer (Personal mobile)	OC Case (Mobile)	22’00”
13/12/2022 19:18:10-19:28:28	Liaison Officer (Personal mobile)	Li (Personal mobile)	10’18”
13/12/2022 19:53-19:56	WhatsApp between OC case and the Prosecutor
14/12/2022 07:26:25-07:32:28	Liaison Officer (Office land line)	Li (Personal mobile)	6’03”
14/12/2022 07:43:49-07:46:38	CSD Wanchai Office	Li (Personal mobile)	2’58”
14/12/2022 07:48:06-07:55:21	CSD Wanchai Office	Li (Personal mobile)	7’15”
14/12/2022 08:06:30-08:07:30	OC case (Land line)	Li (Work mobile)	1’00”
14/12/2022 09:17:30-09:19:35	Liaison Officer (Work mobile)	Li (Personal mobile)	2’05”
14/12/2022 09:23-10:08	WhatsApp communications between OC Case and Ms Siu
14/12/2022	Li waited at court to resume evidence
14/12/2022 19:03:35-10:03:39	CSD Wanchai Office	Li (Personal mobile)	0’4”
14/12/2022 10:55-13:02	OC case testified Mobile phones and notebook of CSD officers in court handed over
14/12/2022	CSD Wanchai Office	Li (Personal mobile)	0’34”
14/12/2022	Ms Siu (Personal mobile)	Li (Personal mobile)	0’29”
14/12/2022 13:32:46-13:33:22	Liaison Officer (Office land line)	Li (Personal mobile)	0’36”
14/12/2022 13:38:15-13:38:58	CSD Wanchai Office	Li (Personal mobile)	0’43”
14/12/2022 13:40:01-13:41:01	Li (Work mobile)	CSD Wanchai Office	1’00”
14/12/2022 14:45-16:25	OC Case, 2 CSD officers in court and Liaison Officer testified
15/12/2022 09:40-09:51	Cross examination of Li by D1
15/12/2922 09:52-10:15	Li’s mobile telephone inspected by counsel, all call records have been deleted
15/12/2022 10:16-10:19	Cross examination of Li by D1
15/12/2022 10:29-11:39	Parties took screen shots of Li’s mobile telephone (MFI‑4)
15/12/2022	Cross examination of Li by D2
15/11/2022 12:36:49-12:40:49	Li (Work mobile)	CSD Wanchai Office	4’00”
15/12/2022 12:53:23-12:58:23	Li (Work mobile)	CSD Wanchai Office	6’00”
15/12/2022 13:17:01-13:18:01	Li (Work mobile)	CSD Wanchai Office	1’00”
15/12/2922 13:32:12-13:39:12	Li (Work mobile)	CSD Wanchai Office	7’00”
15/12/2022 13:40:07-13:41:07	Li (Work mobile)	CSD Wanchai Office	1’00”
15/12/2022 13:49:07-13:41:07	Li (Work mobile)	CSD Wanchai office	1’00”
15/12/2022 15:05-15:30	Li cross examined by D3

30.The above call records show that there were 5 telephone conversations between Li and the Liaison Officer or the CSD staff in the morning of day 6 (14/12/2022) of the trial when Li was incommunicado. Further, during lunch time, when Li was supposed to be retrieving his deleted call records, there were a further 5 telephone conversations between Li and the Wanchai CSD office where the Liaison Officer worked.

31.Li was further cross examined by D3 about the voice recognition of the covert audio recording and Li’s various conversations with the Liaison Officer. Li stated he could no longer remember anything.

32.On day 15 of the trial, the arresting officer of D1, Mr Chan Kin Hing (Mr Chan) was tendered for cross examination pursuant to D3’s request. During cross examination, Mr Chan was shown the footages of the CCTV installed at the door and inside D1’s residence. The footages showed that the ICAC officers were taking D1 to the ICAC. At that time, no house search was conducted, as the ICAC were still waiting for a search warrant. When D1 was at the door of his residence, he suddenly turned back and shouted to his helper, telling her to throw away all his electronic devices and valuable items. Upon hearing this, the ICAC officers pushed D1 against a wall and handcuffed him from the back. The ICAC officers held D1 against the wall, Mr Chan pushed D1’s upper body against the wall several times. D1 was then taken back into his residence and was ordered to kneel.

The Grounds of Application

33.D1, D3 and D4 are now applying for a permanent stay of proceedings on the following grounds:

(1)  The trial of these proceedings have been subjected to monitoring and interference by the Liaison Officer. The collusion and the attempt to pervert the course of Justice by Li and the Liaison Officer makes a fair trial impossible;

(2)  D1 was assaulted by the ICAC officers.

34.It was revealed during submissions in this application that parts of the covert audio recording (that was not covered by public interest immunity) has been edited out by an ICAC officer who was not involved in the investigation. In those circumstances, D1 also relied on a further ground that there was a failure to make disclosure.

35.The Prosecution explained that those parts were “screened out” because they were irrelevant and that the Prosecution has no knowledge of the contents of the parts that were “screened out”. The Court pointed out that those parts may be irrelevant to the prosecution, but the Defence are entitled to disclosure. The Prosecution confirmed that the original of the covert audio-recording was still in existence and then agreed to provide the Defence with the “screened out” conversations which are not covered by public interest immunity. The disclosure revealed that the edited parts were indeed irrelevant. Upon such disclosure, D1’s counsel confirmed that he was no longer pursuing this ground.

Legal Principles

36.The law in respect of a permanent stay of proceedings is well settled and does not appear to be in dispute.

37.In HKSAR v Lee Ming Tee [2001] 1 HKLRD 599, the Court of Final Appeal stated at pages 12-:

“C. The jurisdiction to stay criminal proceedings

39. The decision whether or not to bring a prosecution falls entirely within the province of the Secretary for Justice: Basic Law, Art 63. In general, if a prosecution is brought, the court’s duty is to try the case. As Lord Morris (quoting with approval the ruling of the trial judge in that case) stated in Connelly v DPP [1964] AC 1254 at 1304:

“… 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 demands a verdict a judge has no jurisdiction to stand in the way of it.”

The trial of course proceeds in the vast majority of cases. However, the court also unquestionably has jurisdiction to stay criminal proceedings brought by the Secretary in exceptional cases where such a course is justified. That jurisdiction rests on the court’s inherent power to prevent abuse of its own process: Connelly v DPP [1964] AC 1254 at 1354, 1361.

40. In most such cases, the court only grants the stay because notwithstanding the range of remedial measures available at trial, a fair trial for the accused is found to be impossible and continuing the prosecution would amount to an abuse of process. In Jago v The District Court of New South Wales [1989] 168 CLR 23 at 30, Mason CJ put it as follows:

“The continuance of processes which will culminate in an unfair trial can be seen as ‘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.”

His Honour formulated the question arising on such applications for a stay as follows:

“The question is not whether the prosecution should have been brought, but whether the court, whose function is to dispense justice with impartiality and fairness both to the parties and to the community which it serves, should permit its processed to be employed in a manner which gives rise to unfairness” (at 28)

This approach is demonstrated in cases where the accused seeks a stay on the ground of delay…

41. Other matters, apart from delay, have sometimes been relied on in attempts to stay proceedings. Lord Lane CJ gave examples:-

“The abuse alleged may arise in many different forms. It may involve complaints about the methods used to investigate the offence: see Reg v Heston-Fransçois [1984] QB 278. It may be based as Connelly v Director of Public Prosecutions [1964] AC 1254 itself was, on the allegation that the defendant is being prosecuted more than once for what is in effect the same offence. It may be a misuse of the process of the court to escape statutory time limits: see Reg v Brentford Justices, Ex parte Wong [1981] QB 445.” (Attorney-General’s Reference (No 1 of 1990) [1992] QB 630 at 641)

One may add to the list the ground relied on in the present appeal, namely prejudicial pre-trial publicity, considered more fully below. However, the common thread in these authorities is the requirement that a fair trial has become impossible, making continuance of the prosecution an abuse of the court’s process.

42. A second line of stay cases, also relied on in the present appeal, proceeds on a different basis. There are the rare cases where the court is prepared to grant a permanent stay even though a fair trial undoubtedly remains possible. The leading authority is the decision of the House of Lords in R v Horseferry Road Magistrates’ Court, Ex parte Bennett [1994] 1 AC 42, where, although the fairness of the trial was not in question, the court granted a stay because the circumstances involved an abuse of power which so offended the court’s sense of justice and propriety that the entire prosecution was tainted as an abuse of process.

43. While the jurisdiction on this dual basis clearly exists, it is only most sparingly exercised: Tan v Cameron [1992] 2 AC 205 at 221; Jago v The District Court of New South Wales [1989] 168 CLR 23 at 31; Ex parte Bennett [1994] 1 AC 42 at 74.

44. There are cogent reasons why in principle and in practice such stats are highly exceptional.

45. 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 The District Court of New South Wales [1989] 168 CLR 23 at 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.”

46. 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. To quote Brennan J again:-

“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 minimise prejudice to either party.” (Ibid at 46)

His honour continued:-

“Obstacles in the way of a fair trial are often encountered in administering criminal justice. Adverse publicity in the reporting of notorious crimes (Murphy v The Queen [1989] 63 ALJR 422; 86 ALR 35 ), adverse revelations in a public inquiry (Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation [1982] 152 CLR 25), absence of competent representation (McInnis v The Queen [1979] 143 CLR 575; MacPherson v The Queen [1981] 147 CLR 512) or the death or unavailability of a witness, may present obstacles to a fair trial; but they do not cause the proceedings to be permanently stayed. Unfairness occasioned by circumstances outside the court’s control does not make the trial a source of unfairness. When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues. The responsibility is discharged by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer”. (at 47)

Secondly, in cases where a fair trial remains possible even though official misconduct may be involved in the bringing of the prosecution, the court does not exercise the jurisdiction to stay proceedings as a means of disciplining the police or prosecuting authorities. As Lord Lowry put it in Ex parte Bennett (at 74-75):-

“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.’”

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 such a trial, although fair, would nonetheless constitute an intolerable abuse of the court’s process. The instances where such an argument has any prospects of success must necessarily be very rare.

47. Thirdly, in cases 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. This is because 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 and possibly made subject to his residual discretion to exclude the same: R v Hertfordshire County Council, Ex parte Green Environmental Industries Ltd [2000] AC 412; Clinton v Bradley [2000] NIECA 8 at para 17.

…

146. The rarity of situations where a stay is justified even though the fairness of the trial is not in doubt has been mentioned in section C of this judgment. In R v Horseferry Road Magistrates’ Court Ex parte Bennett [1994] 1 AC 42, where such a stay was granted, the abuse was (on assumed facts) extreme. Lord Bridge described it in the following terms:-

“… the prosecuting authority secured the prisoner’s presence within the territorial jurisdiction of the court by forcibly abducting him from within the jurisdiction of some other state, in violation of international law, in violation of the laws of the state from which he was abducted, in violation of whatever rights he enjoyed under the laws of that state and in disregard of available procedures to secure his lawful extradition to this country from the state where he was residing…” (at 64)

It was an abuse which his Lordship described as calling into question “the maintenance of the rule of law itself” (at 67). Moreover, but for such abuse, the accused would not have been brought within the court’s jurisdiction at all, plainly a reason for suggesting that the court should decline to exercise jurisdiction so unacceptably acquired. As Lord Lowry described it, the case was one in which:-

“… it offends the court’s sense of justice and propriety to be asked to try the accused in the circumstances.” (At 74)

147. In R v Latif [1996] 1 WLR 104, the House of Lords gave valuable guidance as to how such applications should be approached. Lord Steyn, with whom the other Law Lords agreed, pointed out that where some form of official misconduct was involved in the alleged abuse of process, the court is faced with a “perennial dilemma”:-

“If the court always refuses to stay such proceedings, the perception will be that the court condones criminal conduct and malpractice by law enforcement agencies. This would undermine public confidence in the criminal justice system and bring it into disrepute. On the other hand, if the court were always to stay proceedings in such cases, it would incur the reproach that it is failing to protect the public from serious crime.” (at 112)

The solution adopted was as follows:-

“The weaknesses of both extreme positions leaves only one principled solution. The court has a discretion: it has to perform a balancing exercise. If the court concludes that a fair trial is not possible, it will stay the proceedings. That is not what the present case is concerned with. It is plain that a fair trial was possible and that such trial took place. In this case the issue is whether, despite the fact that a fair trial was possible, the judge ought to have stayed the criminal proceedings on broader considerations of the integrity of the criminal justice system. The law is settled. Weighing countervailing considerations of policy and justice, it is for the judge in the exercise of his discretion to decide whether there has been an abuse of process, which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed: Reg v Horseferry Road Magistrates’ Courts: Ex parte Bennett [1994] 1 AC 42.” (at 112)

Lord Steyn added:-

“The speeches in Ex parte Bennett conclusively establish that proceedings may be stayed in the exercise of the judge’s discretion not only where a fair trial is impossible but also where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place. An infinite variety of cases could arise. General guidance as to how the discretion should be exercised in particular circumstances will not be useful. But it is possible to say that in a case such as the present the judge must weigh in the balance the public interest in ensuring that those that are charged with grave crimes should be tried and the competing public interest in not conveying the impression that the court will adopt the approach that the end justifies any means.” (at 112-3)”

38.The principles enunciated in Lee Ming Tee (supra) were succinctly summarised by the Court of Appeal in HKSAR v Ng Chun To Raymond & Another [2013] 5 HKC 390. In paras 84-108, the Court of Appeal stated:

“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 in 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.

85. The cases in the second category will be rare since:

“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 such a trial, although fair, would nonetheless constitute an intolerable abuse of the court’s process. The instances where such an argument has any prospect of success must necessarily be very rare.”

86. Highly relevant for the purpose of the present case is the injunction not to utilise the discretion to stay for the purpose of disciplining the individual or body guilty of the abuse of power which has been demonstrated:

“The discretion to stay, it’s not a disciplinary jurisdiction and ought not to be exercised in order to express the court’s disapproval of official conduct.”

87. The key question in the second category of case is, therefore, not whether, without more, the court is offended, or even outraged by the prosecutorial misconduct disclosed; and it is not whether the public, possessed of the facts, would be offended or outraged by the misconduct. It is, rather, whether “the court’s sense of justice and propriety” or, one should add, public confidence in the proper administration of justice, is or would be offended “if [the court] is asked to try the accused in the particular circumstances of the case.” (emphasis added).

88. That is what distinguishes the punitive of disciplinary function, which is not the court’s remit, from that which is the court’s remit, namely, to administer justice in individual cases by a process the integrity of which remains intact. The fact of prosecutorial misconduct in connection with a criminal case does not necessarily undermine the integrity of and respect for the process; for where the weaponry available to a court in the course of a trial is such as to ensure a fair trial, the integrity of the process is maintained, as it is where, assuming the prospect of a fair trial, the circumstances as a whole such that, notwithstanding the investigative or prosecutorial misconduct in the case, proceeding with the trial of the accused does not affect the court’s sense of justice and propriety or bring the criminal justice system into disrepute.

89. It has been said that “[i]t may not always be easy to distinguish between (impermissibly) granted a stay ‘in order to express the court disapproval of official conduct pour encourager les autres’ and (permissibly) granting a stay because it offends the court’s sense of justice and propriety”; but we suggest that it is easier to make the distinction if one remembers that Lord Lowry in Bennett added to the phrase “it offends the court’s sense of justice and propriety” the words “to be asked to try the accused in the circumstances.” Since that is the relevant question in application of the second limb of the abuse test, it is all the circumstances that require to be considered; not just the misconduct, but all factors in the particular case that touch upon that question including, but not limited to, the gravity of the offence with which the accused is charged, the availability of a sanction against the miscreant, and whether the misconduct was perpetrated in bad faith or in circumstances of urgency. An example of a relevant circumstance emerges from the Reasons for Verdict in the trial of the three officers, that CCH was “deliberately leading the [officers] on during the meetings”, encouraging them to coach him; as it happens, that does not appear from the ruling upon CCH’s application for a stay in his own trial to have featured in the balancing exercise undertaken by Judge Tallentire but it is an example which serves the purpose of illustrating how varied the relevant circumstances can be.

90. The distinction between the two approaches, the one permissible, the other impermissible, requires emphasis because the author of the judgment in HKSAR v Wong Hung Ki is satisfied, despite the urging of counsel for the applicants, that the reasons for judgment in that case obscured the distinction at the risk of taking the impermissible route; have you shared by the other members of the presently constituted court. Since a number of passages in that judgment, if followed, risk leading advisers astray, we must deal with them.

91. The facts of Wong Hung Ki have been referred to earlier in this judgment. It was a case in which ICAC officers took a tape recording of a conversation between an accused person and legal advisors, and listened to the tape recording when they knew or ought to have known that the conversation was one covered by legal professional privilege. In the course of summarising key principles Stock VP said:

“… there will be circumstances, though rare indeed, in which, despite the availability of a fair trial, an abuse of power so offends the court’s sense of justice and propriety or, put another way, is of such a kind as to affront the court’s sense of justice and propriety with severe consequences for public confidence in the administration of justice, that the court may feel duty-bound to exercise its discretion to order a stay of proceedings.”

92. The court then expressed its view that:

“In general… where there is a deliberate violation of a suspected person’s right to legal professional privilege, that constitutes an affront so great as to the integrity of the system of justice and therefore the rule of law that ‘the associated prosecution is rendered abusive and ought not to be countenanced by the court’.”

93. The citation in the passage was from R v Grant, a decision of the Court of Appeal of England and Wales which has since in material part been disapproved by the Privy Council in Warren v Attorney General for Jersey, to which latter case we shall shortly turn.

94. In the closing stages of his judgment, the court in Wong Hung Ki said, further, that:

“94. At the end of the day and assessment has to be made by the court based on experience, with an appreciation of the fact, that operational considerations often require difficult decisions but, at the same time, with due regard to the rule of law’s requirement that its underpinning principles be respected and not deliberately flouted. In our judgment, the evidence in this case displayed on the part of the ICAC offices who took the key decisions, particularly the decision to listen to the recorded conversation, either a cavalier approach to privileged communications or a failure to appreciate the nature and importance of the principle. It matters not which it was, for if it was the latter, it is a failure on a fundamental issue which cannot be countenanced in the case of a law enforcement authority operating in a society governed by the rule of law.

95. For these reasons, we determined that there had been an abuse of process which was an affront to the conscience of the court and to which the court should not lend itself by permitting the proceedings to continue and, accordingly, we ordered a stay of proceedings.”

95. The problem with these passages is twofold:

(1) They are likely be read as suggesting that a deliberate snub to the rule of law may give rise to such a sense of outrage as of itself to warrant, a stay of proceedings. Whether or not the court conducted a balancing exercise with other factors in the scales – a question which at this stage may be difficult, and in any event inappropriate, to answer – is not the point. The point is that in so far as those passages suggest that curial outrage at prosecutorial misconduct of itself suffices to warrant a stay of proceedings under the second limb of the abuse principles, they mis-state the law and should not be followed.

(2) The suggestion that in general a deliberate violation of a suspected person’s right to legal professional privilege of itself renders the associated prosecution an abuse is a suggestion which goes too far for, again, it concentrates on the misconduct to the exclusion of other factors and detracts from the relevant question which is whether a trial of the accused in the particular case is in all the prevailing case-specific circumstances an affront to the conscience of the court or an event which would undermine public confidence in the administration of justice.

96. These errors in approach become apparent by revisiting Lee Ming Tee and by a study of the judgments in Warren.

97. The basis of the application for a stay in Warren was that the only evidence against the defendants, charged with conspiracy to import a large quantity of cannabis into Jersey from the Netherlands, had been obtained by police monitoring of incriminating conversations between one of the defendants and a co‑conspirator upon collection of the consignment of drugs in Amsterdam. Authority for fitting a tracking and audio device in that defendant’s vehicle in Jersey had been obtained from the Jersey authorities but the permission of the authorities of certain of the Continental countries through which that defendant travelled, to fit audio devices and through them eavesdrop on conversations, had not been secured. A senior prosecutor in Jersey advised that evidence procured by means of an audio device for the use for which no consent had been obtained from the authorities of the Continental countries was, notwithstanding the lack of consent, unlikely to be excluded in the Jersey proceedings. The Jersey officers fitted the defendant’s car with a tracking and an audio device. Unexpectedly, the defendant changed his plans, travelled to France aboard a ferry and then hired another car in France with which he drove to Amsterdam. The officers, notified of the sudden change of plan, requested assistance from the French police in deploying a tracking device in the hire vehicle but deliberately did not raise the issue of the audio device. In the result, the officers acted unlawfully in a foreign jurisdiction and engaged in deliberate deceit of their French counterparts. The Commissioner in Jersey held that the balance of factors fell in favour of refusing a stay; the Jersey Court of Appeal refused the defendants leave to appeal; and in due course, the defendants were convicted. The judgments to which we now turn are those in the subsequent unsuccessful appeal to the Privy Council.

98. Lord Dyson traversed key passages from past authorities and one from an academic text, including:

(1) R v Maxwell in which Lord Dyson had said that it was:

“… well established that the court has the power to stay proceedings in two categories of case, namely (i) where it will be impossible to give the accused a fair trial, and (ii) where it offends the court’s sense of justice and propriety to be asked to try the accused in the particular circumstances of the case. In the first category of case, if the court concludes that an accused cannot receive a fair trial, it will stay the proceedings without more. No question of the balancing of competing interests arises. In the second category of case, the court is concerned to protect the integrity of the criminal justice system. Here a stay will be granted where the court concludes that in all the circumstances a trial will ‘offend the court’s sense of justice and propriety’ (per Lord Lowry in … Ex p Bennett…) or will ‘undermine public confidence in the criminal justice system and bring it into disrepute’ (per Lord Steyn in R v Latif [1996] 1 WLR 104, 112F).” (emphasis added)

(2) Ex parte Bennett to which we have earlier referred and to which the passage in Maxwell referred; but the present point is that in referring to Ex p Bennett Lord Dyson commented that:

“It is true that in Ex p Bennett the need for a balancing exercise was not mentioned, but that is no doubt because the House of Lords considered that the balance obviously came down in favour of a stay on the facts of that case (the kidnapping of a New Zealand citizen to face trial in England).”

(3) Latif in which Lord Steyn had said that:

“Weighing countervailing considerations of policy and justice, it is for the judge in the exercise of his discretion to decide whether there has been an abuse of process, which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed… . The speeches in Ex p Bennett conclusively established that proceedings may be stayed in the exercise of the judge’s discretion not only where a fair trial is impossible but also where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place. An infinite variety of cases could arise. General guidance as to how the discretion should be exercised in particular circumstances will not be useful. But it is possible to say that in a case such as the present the judge must weigh in the balance the public interest in ensuring that those that are charged with grave crimes should be tried and the competing public interest in not conveying the impression that the court will adopt the approach that the end justifies any means.” (Emphasis added)

(4)(i) An extract from Professor Andrew L‑Y Choo’s book on abuse of criminal proceedings, in which in relation to the second category of case, Professor Choo said:

“The courts would appear to have left the matter at a general level, requiring a determination to be made in particular cases of whether the continuation of the proceedings would compromise the moral integrity of the criminal justice system to an unacceptable degree. Implicitly at least, this determination involves performing a ‘balancing’ test that takes into account such factors as the seriousness of any violation of the defendant’s (or even a third party’s) rights; whether the police had acted in bad faith or maliciously, or with an improper motive; whether the misconduct was committed in circumstances of urgency, emergency or necessity; the availability or otherwise of direct sanction against the person(s) responsible for the misconduct; and the seriousness of the offence with which the defendant is charged.”

(ii) Their Lordships in Warren endorsed that passage from Professor Choo’s work as a useful summary of factors frequently taken into account in application of the required balancing exercise adding, however, that:

“… it is also necessary to keep in mind [Lord Steyn’s] salutary words [in Latif] that an infinite variety of cases can arise and how the discretion should be exercised will depend on the particular circumstances of the case.”

99. We lift these cited passages from Lord Dyson’s judgment because they ring with the recurrent theme that the test for the second category of case in which a stay may be warranted is not blinkered by a singular focus upon the nature and magnitude of the misconduct but is one which, instead, addresses the question whether, in the face of all the circumstances, the prospect of trying the defendant for the offence or offences with which he is charged offends the court’s sense of justice and propriety or is likely to undermine public confidence in the criminal justice system and bring it into disrepute. Since that is the correct approach, its application necessarily involves a balancing exercise.

100. The judgment in Grant is one which influenced the decision in Wong Hung Ki. Grant was a case of deliberate infringement of legal professional privilege and the Court of Appeal (England and Wales) said, in a passage which finds an echo in Wong Hung Ki, that :

“… we are in no doubt that in general unlawful acts of the kind done in this case, amounting to a deliberate violation of a suspected person’s right to legal professional privilege, is so great an affront to the integrity of the justice system, and therefore the rule of law, that the associated prosecution is rendered abusive and ought not to be countenanced by the court.”

101. Their Lordships in Warren were satisfied that the decision in Grant was wrong in that whilst a deliberate invasion of a suspect’s right to legal professional privilege was indeed “a serious affront to the integrity of the justice system which may often lead to the conclusion the proceedings should be stayed”, nonetheless:

“… the particular circumstances of each case must be considered and carefully weighed in the balance. It was obviously right to hold on the facts in R v Grant that the gravity of the misconduct was a factor which militated in favour of a stay. But as against that, the accused was charged with a most serious crime and, crucially, the misconduct caused no prejudice to the accused. This was not even a case where the ‘but for’ fact had a part to play. The misconduct had no influence on the proceedings at all.”

102. The Board concluded that it was “difficult to avoid the conclusion that in Grant the proceedings were stayed in order to express the court’s disapproval of police misconduct and to discipline the police”; a flaw in approach which might also be thought to taint the decision in Wong Hung Ki.

103. Counsel for the respondent in Warren contended that it was possible to identify categories of cases where the court will always grant a stay; for example, he suggested, unlawful abduction; entrapment; and prosecutions in breach of a prior assurance that there would be no prosecution. These are situations which reflect a suggested “but for” test; in other words where, but for the abuse of power, there would not have been a trial. The Board rejected the idea that such a test “will always or even in most cases necessarily determine whether a stay should be granted on grounds of abuse of process”. It was, however, clearly a relevant factor.

104. The result of all this is to remind the courts faced with a stay application based upon the second limb of the abuse test, that it is not appropriate to order a stay merely because of a sense of outrage at such particular misuse of executive power as may be demonstrated in the circumstances of the particular case; that the ultimate question under this limb of abuse is always whether all the circumstances specific to the particular case, including but not limited to the misconduct, lead to the conclusion that proceeding with a trial of the accused for the offence charged offends the court’s sense of justice and propriety or that public confidence in the criminal justice system would be undermined by proceeding with it or whether, conversely, it is in the interests of justice that, notwithstanding the misconduct, the accused be tried for the offence with which he is charged.”

39.In the recent case of HKSAR v Lau Chee Ying HCCC 51/2022, [2023] 5 HKCFI 1440 at paragraphs 21-26, the relevant legal principles were summarised as follows:

“21. That the court has an inherent jurisdiction to prevent its own process being abused is not in doubt: HKSAR v Lee Ming Tee (2001) 4 HKCFAR 133. However, the Court of Final Appeal held in that case that the circumstances in which in the exercise of a court’s discretion, a stay of proceedings would be justified are exceptional. This is because, in general, if a prosecution was brought, it was the court’s duty to try the case. Generally speaking, a prosecutor has as much right as an accused 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. The court would grant a stay of criminal proceedings in either of the two following circumstances:

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

(2) in very rare cases, a stay might be granted, although the fairness of the trial is not in question, because the circumstances involved an abuse of process which so offend the court’s sense of justice and propriety that the entire prosecution is tainted as an abuse of process. In such instances, the court is not exercising the jurisdiction to stay as a means of disciplining the public officials involved.

22. In Warren v Attorney General for Jersey [2012] 1 AC 22, the Privy Council explained the difference between the two aforesaid categories as follows. In the first category, no question of balancing interests arose, whereas in the second category fairness to the accused was not the proper focus of the court’s attention; that, in determining whether to stay criminal proceedings in the second category on the ground of executive misconduct, the court would take into account the particular circumstances of the individual case and, exercising a broad discretion, would strike a balance between the public interest in ensuring that those accused of serious crimes were prosecuted and the competing public interest in ensuring that the misconduct did not undermine public confidence in the criminal justice system and bring it into disrepute. That said, in Hamilton & Ors v Post Office Limited, it was held that depending on the nature and degree of the abusive conduct, the same acts and/or omissions may both render a fair trial impossible (thus, category 1) and make it an affront to the conscience of the court to prosecute at all (and thus category 2).

23. As regards cases which fall in category 1, in the recent case of HKSAR v Milne John [2022] 25 HKCFAR 257, the Court of Final Appeal reiterated the highly exceptional nature of a permanent stay of criminal proceedings, saying that “it is only in very unusual circumstances that a court will conclude that a fair trial is impossible and thus, as a last resort, abort the trial.”

24. As regards category 2, in HKSAR v Ng Chun To Raymond [2013] 5 HKC 390, Stock VP (as he then was) giving the judgment of the Court of Appeal, stressed that those cases would be rare since the public interest lays in the guilt or innocence of the accused been fairly and openly determined at a trial. For this to be displaced, powerful reason must exist for concluding that such a trial, although fair, but nonetheless constitute an intolerable abuse of the court’s process. The instances where such an argument have any prospect of success must necessarily be very rare. Citing R v Horseferry Road Magistrates Court, ex p Bennett [1994] 1 AC 42, his lordship emphasised that the test for the “affront” limb does not hinge on the perception of the public, supra, at §87:

“The key question in the second category of case is, therefore, not whether, without more, the court is offended or even outraged by the prosecutorial misconduct disclosed; and it is not whether the public, possessed of the facts, would be offended or outraged by the misconduct. It is, rather, whether ‘the court’s sense of justice and propriety’ or, one should add, public confidence in the proper administration of justice, is or would be offended ‘if [the court] is asked to try the accused in the particular circumstances of the case.’”

25. As aforesaid, the court in determining a stay application of a case said to fall within category (2) is required to conduct a balancing exercise: see also R v Latif [1996] 1 WLR 104. In Warren v A‑G for Jersey, the Privy Council summarized some of the factors that are frequently taken into account by the courts as follows:

“… Implicitly at least, this determination involves performing a “balancing” test that takes into account such factors as the seriousness of any violation of the Applicant’s (or even a third party’s) rights; whether the police have acted in bad faith or maliciously, or with an improper motive; whether the misconduct was committed in circumstances of urgency, emergency or necessity; the availability or otherwise of a direct sanction against the person(s) responsible for the misconduct; and the seriousness of the offence with which the Applicant is charged.”

Thus, the motive or intent of the authorities concerned must be a relevant and important consideration for the court: HKSAR v Ko Kit & Anor [2010] 6 HKC 181, at §48. In HKSAR v Lee Ming Tee and Securities and Futures Commission (Third Party) (2003) 6 HKCFAR 336, 395 B-C, Sir Anthony Mason NPJ had the following to add:

“In the absence of a finding of “bad faith”, this standard will rarely, if ever be satisfied in a case where a fair trial is still possible. Even if there be a finding of “bad faith”, that finding would not necessarily conclude the matter.”

See also Secretary for the Home Department v CC [2013] 1 WLR 2171, 2200B-2201F.

26. Turning to the burden of proof, it is well-established that it is for the accused to establish the facts which provide the basis for ordering a stay of proceedings: Tan Soon Gin v Judge Cameron & Anor [1992] 2 HKLR 254 (PC). The standard of proof is on the balance of probabilities: R v Derby Crown Court, ex parte Brooks [1985] 80 Cr App R 164. However, the nature and quality of evidence which would satisfy a court may depend in part on the facts that are alleged in the support of the application and that when assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on a balance of probabilities: Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, at 586E-H, applied in HKSAR v Lee Ming Tee & Securities and Futures Commission (Third Party),ante; see also Criminal Procedure – Trial on Indictment by Bruce, at VI [753].”

Submissions

40.Although the grounds for the stay applications of all 3 defendants are the same, the reasons in support are slightly different.

41.As explained above, D1’s counsel confirmed that he is no longer relying on the Prosecution’s previous failure to disclosure irrelevant parts of the covert audio-recording.

42.D1’s counsel submitted that Li has discussed the evidence of this case with the Liaison Officer, who in turn related Li’s message to the OC Case. He argued that Li, the Liaison Officer and the OC Case have tried to manipulate the Prosecutor’s conduct of Li’s re‑examination. Further, evidence of the OC Case, Li and the Liaison Officer was inconsistent and incredible. In those circumstances, a fair trial is no longer possible. In addition, in the event that the Court finds that a fair trial is still possible, counsel submitted that the discussion of Li’s evidence, the alleged attempt to manipulate Li’s re‑examination, Li’s deletion of his call records, Li’s refusal to provide his mobile telephone passwords to the police and the assault of D1 by the ICAC officers amounted to an affront to the Court’s sense of justice and propriety and the continuation of the trial would amount to an abuse of process.

43.D3’s counsel also says that a fair trial is impossible. She submitted that this is because the present trial has been subjected to “such monitoring and interference” by the Liaison Officer and Li’s “deliberate attempt in concord with [the Liaison Officer] to obstruct and mislead the Court”. Like D1, she submitted that the evidence of the OC Case and the Liaison Officer was inconsistent. D3’s counsel pointed out that there was no reason for any communication between Li and the Liaison Officer, especially when Li was still in the course of giving evidence. However, the call records from Li’s mobile telephones show that there were repeated telephone conversations between Li and the Liaison Officer, even during the time when the communication between Li and the Liaison Officer was called into question. D3’s counsel pointed out that the Liaison Officer sent CSD officers to sit in the public gallery and take notes of the proceeding. She alleged that the Liaison Officer was not only directing the way in which the trial should be run by manipulating the line of re‑examination, he was exerting influence over his subordinate’s testimony. She says that the Liaison Officer was attempting to pervert the course of justice. In addition, D3’s counsel invited the Court to consider:

(1)  Ms Salina Siu’s inappropriate communications with the OC Case when the Prosecutor was reporting the message from the Liaison Officer to the Defence;

(2)  Li’s deletion of his call reports. Counsel alleged that Li had only done this because he had been tipped off by the Liaison Officer;

(3)  Li’s refusal to provide the passwords to his mobile telephones;

(4)  Li’s sick leave and alleged inability to recall anything after his sick leave; and

(5)  The assault of D1 during his arrest.

44.Further and in the alternative, D3’s counsel submitted that even if the Court finds that a fair trial is possible, in the light of the above mentioned matters, there was an abuse of power which would amount to an affront to the Court’s sense of justice and propriety.

45.In her oral submissions, D3’s counsel also emphasised that the telephone, cigarettes and lighters were found inside a prisoner’s bag. Although the prisoner’s number on the bag did not belong to D3, there was no investigation as to the bag’s ownership. During her cross examination of the ICAC officers, she suggested that there was a conspiracy to fabricate a case against D3. She asked the Court to view all the circumstances of the investigation as an abuse of process.

46.The submission from D4’s counsel is very short as he adopted the written submission from D3’s counsel. He added that the Court has “actually witnessed at first hand an attempt to pervert the course of justice”. He argued that the OC Case, the Liaison Officer and Li were “brazenly attempting” to improve on Li’s evidence which amounted to a complete and actual contempt of court. D4’s counsel also pointed to the presence of 2 CSD officers in Court and the events during D1’s arrest as an affront to the Court’s sense of justice and propriety. D4’s counsel conceded that none of the above matters had any direct impact on D4. However, he argued that the Prosecution’s case against D4 lacked substance and that in all the circumstances of the case, the continuation of the present trial would be an abuse of process.

47.In Reply, the Prosecution argued that there was no evidence to suggest that Li and the Liaison Officer had attempted to pervert the course of public justice or that any of the ICAC and/or CSD officers had acted in bad faith. She submitted that the grounds put forward by the Defence were isolated incidents which (taken individually or cumulatively) do not pose any threat to the possibility of a fair trial. As to the second limb of the application, the Prosecution submitted that even if the Court finds the behaviour of some of the witnesses amounted to misconduct, the nature and gravity of such misconduct “was not very serious in nature and no prejudice” was in fact caused to the Defence.

Discussion

Whether a Fair Trial is Possible

48.The parties have filed extensive submissions, setting out the evidence of the relevant witnesses and commenting on their credibility. However, this is not the test applicable on an application for a permanent stay. As stated above, the test is whether a fair trial is possible in all the circumstances of the particular case and notwithstanding the remedial measures which are available to the court. None of the parties have addressed the Court on what remedial measures are available and why a fair trial is or is not possible despite those measures.

49.After the Prosecutor reported the message from the OC Case, every opportunity was given by the Court to the parties to look into the surrounding circumstances. Not only did the OC Case, the CSD officers in the public gallery, the Liaison Officer and Li testify, their telephones and the CSD officer’s notes were made available to the parties for inspection. Li has deleted all his call records. However, those call records have been retrieved from the service providers. Li has refused to provide the passwords of his mobile telephones to the police to retrieve the WhatsApp call records and messages. However, the parties were given access to the telephones of the OC Case and the Liaison Officer. There was no suggestion that any record of WhatsApp calls from Li were found. If any messages from Li to the OC Case or the Liaison Officer were deleted, there would be a message box which says “This message was deleted”. There was also no suggestion that any such deleted messages were found.

50.There is no dispute that Li has already told the Court in his examination-in-chief that the basis of his voice identification was his comparison of the covert audio recording against D3’s visit audio recordings and his weekly patrols at TFCI. According to the message from the OC Case to the Prosecutor, Li wanted to clarify that the main basis of voice identification was the comparison of the audio recordings, rather than the weekly patrols. There was nothing to suggest that he was adding anything else to his previous evidence. Further, the OC Case was not directing the Prosecutor to re‑examine Li on the matter. She was only asking whether it was possible. In fact, even in the absence of any such re‑examination, Li could have informed the Court that he would like to clarify part of his evidence.

51.All the criticisms from the Defence against the evidence of the OC Case, the Liaison Officer and Li only go towards their credibility. These criticisms will be considered when the Court assesses their evidence at the end of the trial. If the Court agrees with those criticisms, their evidence or part thereof will be rejected.

52.The circumstances and treatment of D1 during his arrest are all matters which go to the admissibility of his video-recorded cautioned interview. It has nothing to do with D3 or D4. In any event, the Prosecution has already made it clear that they are not seeking to adduce that interview as evidence.

53.Li’s sick leave did cause an extensive delay in the proceedings. However, his inability to give evidence during that time was supported by a medical practitioner.

54.The behaviour of Li, the Liaison Officer, the OC Case and Ms Salina Siu may well be offensive and inappropriate. However, none of the matters mentioned by the Defence (taken individually or collectively) would render a fair trial impossible.

Whether Continuation of the Trial would be an Abuse of Process

55.As was explained in the above authorities, it would be in extremely rare cases for the Court to find that the continuation of the trial would be an abuse of process if a fair trial is possible.

56.The Court’s power to order a stay is not a means of disciplining the public officials involved. Even when the behaviour complained of amounted to misconduct, a stay of proceedings is not necessarily granted. As was stated in Ng Chun To (supra), the key question is not whether, without more, the court is offended or even outraged by the misconduct disclosed. It is also not whether the public, possessed of the facts, be offended or outraged by the misconduct. It is rather, whether ‘the court’s sense of justice and propriety and/or public confidence in the proper administration of justice, is or would be offended if the court is asked to try the accused in the particular circumstances of the case. The Court is required to perform a balancing exercise.

57.I do not agree that the charges are minor. Misconduct in public office is a serious offence which is usually visited by an immediate custodial sentence. Taking the evidence to its highest, it appears that Li wanted to repeat the evidence that he has already given in court. This is not evidence of bad faith, malice or improper motive. At the end of the day, if the Court finds that they are guilty of misconduct, there are direct sanctions available elsewhere.

58.Having performed the balancing exercise, the Court is of the view that continuation of this trial does not constitute an affront to the Court’s sense of justice or propriety or amount to an abuse of process; nor would the continuation of the trial undermine public confidence in the criminal justice system or bring it into disrepute.

59.In all the circumstances, the applications for a permanent stay of proceedings are refused.