HKSAR v. Chow Yiu Chung

DCCC 663/2022

[2024] HKDC 194

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 663 OF 2022

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RULING

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1.The Defendant made an application for the permanent stay of the proceedings against him.

2.The Defendant faces two charges of theft alleging him of stealing choses in action concerning 29 cheques as particularized in the charges (“the said 29 Cheques”).

The Prosecution Case

3.As revealed in the Summary of facts, three entities were involved in the present case, namely King Wai Group (HK) Company Limited (“King Wai”), Hong Kong China Chamber of Commerce Limited (“HKCC”), China Overseas Investment Annual Conference Consultants Limited (“COIS”),

4.As indicated by the Prosecution, four witnesses are intended to be called by the prosecution:

4.1  PW1: Mr CHAN King-Wai, the founder of King Wai, HKCC and COIS.

4.2  PW2: Madam CHAN Tan-tan Cherish, the secretary of King Wai, vice-chairperson of HKCC and director of COIS.

4.3  PW3: Mr. LEUEG, the financial manager of King Wai.

4.4  PW4: Mr. HO Chi-wai, the former financial manager of King Wai.

5.As summarised by the Prosecution in their submission, the essence of their case against the Defendant are as follow:

5.1  The Defendant was employed as an accounting assistant by King Wai. He was responsible for accounting works including issuing cheques on behalf of HKCC and COIS. These cheques would be signed by PW2.

5.2  According to PW2, PW3 and PW4, no monies were payable to the defendant at all apart from his salaries. In particular, PW1 and PW4 confirmed that the Defendant had not been tasked to buy storage card or technological products which would otherwise require reimbursement for sums he paid and/or had paid. PW2 confirmed, whereas PW3 recognized, that the signatures of the said 29 Cheques purporting to be signed by PW2 were in fact not signed by her.

5.3  The Defendant, therefore, without authorization, must have had dishonestly appropriated the credit balances in the accounts of HKCC and COIS, thus constituting theft of the same as pleaded in Charges 1 and 2.

The Defence Case

6.For the purpose of the present application, the Defendant opted to disclose his line of defence as indicated in the Defendant’s submissions:

6.1  Ever since the Defendant joined the King Wai group, he was a junior staff and was never required or entitled to keep the cheque books. They were kept by PW3 and PW4. From time to time he was instructed by PW3 and PW4 to buy items for the companies, which were mainly itunes gift cards. His understanding was that it was done for the legitimate purpose of the companies.

6.2  In order to do so, cheques of HKCC and COIS would be paid into his account, which he would immediately use for the purpose he was instructed, mainly to buy itunes gift cards. The persons who gave him instructions were PW3 and PW4.

6.3  It is the Defendant's case that the internal emails (of King Wai) can confirm the above facts, because the instructions were given to him by PW3 and PW4 via internal emails and the content of them would also confirm the above facts and totally exonerate the Defendant. It is his case that he had to enter the records of the itunes gift cards' purchases into an Excel file in the company’s server.

6.4  The Defendant confirms that he never forged his signatures on the 29 cheques paid into his account or the other cheques used to defray the companies’ legitimate expenses.

The Application

7.The Defence rely on three grounds for the purposes of the present application:

7.1  Missing information and records.

7.2  Missing witnesses.

7.3  Delay in bringing prosecution.

Legal principles

8.The principles applicable to the present application were considered in HKSAR v LEE Ming Tee & Another (2001) 4 HKCFAR 133. It was stated by the Court of Final Appeal (at paras. 39-47, 146-147 of the judgment):

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 … 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 the 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 the 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 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."

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 processes 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-Francois [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. These 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 stays 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. ….

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 minimize prejudice to either party." (Ibid at 46)

His Honour continued :-

"…. 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.

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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 jurisdictionso 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)”

9.In HKSAR v LEE Ming Tee and Security and Futures Commission  (2003) 6 HKCFAR 336, the Court of Final Appeal also stated (at paras. 161-162; 170; 182-184 of the judgment):

161. The prosecution’s duty is to disclose to the defence material (including information) in its possession or control. That will ordinarily include materials that have been gathered by the investigating agency (the police) and it is the responsibility of the prosecution to make the investigating agency aware of the need to make available all relevant materials. In this sense, the prosecutor’s duty is to disclose to the defence all relevant material in its possession or control and in the possession or control of the investigating agency. 

162 In order to ensure that all disclosable material is provided to the defence, prosecuting counsel should instruct investigating officers and, where appropriate, witnesses to bring to counsel’s attention any material that may be disclosable. In other words, disclosable material known to a witness, including an expert witness, should be channelled through prosecuting counsel who should take appropriate steps to facilitate that happening.

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170. The prosecution’s duty is to disclose to the defence relevant material (including information) which may undermine its case or advance the defence case. The duty is not limited to the disclosure of admissible evidence. Information not itself admissible may lead by a train of inquiry to evidence which is admissible: Reg v. Preston at 163-164, per Lord Mustill. And material which is not admissible may be relevant and useful for cross-examination of a prosecution witness on credit. 

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“182. In the light of the conclusions already reached, there is no basis for the grant of a permanent stay. It was not a case in which the respondent could not get a fair trial. Therefore if the case was to attract a stay, it had to come within the principle stated by Lord Steyn in R v Latif [1996] 1 WLR 104 at 112G-H

“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: R v. Horseferry Road Magistrates’ Court, ex p Bennett [1994] 1 AC 42”

It is generally recognised that only in exceptional circumstances will stay be granted when a fair trial is possible. An indication of what this means is conveyed by L’Heureux-Dubi J’s observations in R v. O’Connor (1996) 130 DLR (4^th) 235 at p. 277B-B:

“a stay of proceedings is only appropriate “in the clearest of cases”, where the prejudice to the accused’s right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the intergrity of the judicial system if the prosecution were continued.”l

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.

183. ... There may be many instances of an abuse of process which amount to an affront to the public conscience with severe consequences of the public confidence in the administration of justice.

184. ... The judicial decision that there is an abuse of process which requires the grant of a stay is itself the result of the exercise of judicial discretion. It is for the judge to weigh the countervailing considerations of policy and justice and then, in the exercise of the discretion, decide whether there is an abuse of process which requires a stay.

10.In HKSAR v Ng Chun To Raymond & Another [2013] 5 HKC 390, the Court of Appeal stated (at paras 84-104 of the judgment):

“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 insofar 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.”

Submissions

The Defence

11.The Defendant submitted that PW2 and PW3 stated in their respective witness statements that they each had come across information and/or records that led to their respective allegations against the Defendant of forging PW2’s signature in the said 29 Cheques.

12.By praying-in aid of HKSAR v LEE Ming Tee and Security and Futures Commission (supra), the Defendant submitted that the police was therefore under a duty to seize computer records, account records, ledgers and internal emails of King Wai, HKCC and/or COIS in the course of their investigation.

13.None of those information or record was obtained by the police.

14.It is therefore the Defendant’s submission that he was prejudiced as a result of the failure on the part of the police in obtaining such materials thus rendering a fair trial no longer possible.

15.Further, the Defendant also submitted that the “an absence of colleagues whom the Defendant can call as his witness” contributed to prejudice suffered by him.

16.The Defendant also submitted that the delay in bringing the prosecution had caused retrieval of information and records not possible.

The Prosecution

17.Insofar as the complaint of delay was concern, the prosecution listed out in their submissions the relevant chronology of events and explained the time being spent as follow:

17.1  The case was reported on 14 April 2015. The Defendant was put on wanted list the following day. Starting from the month May 2015, the police began investigation with various witnesses and banks.

17.2  The Defendant was located on 2016-08-08. It is relevant that, at the time of his arrest and out of the cautioned interviews, the Defendant had already claimed that PW1 often asked D to buy iTunes credit points (in the amount of about HKD 50,000 each time) and the fact was recorded in VTC’s email records. The monies paid into the Defendant’s bank accounts were for such purposes. In March 2015, the Defendant was suddenly dismissed from VTC. This is relevant to (i) the subsequent investigative steps, including the taking of the statements of PW1 (and the time used for the same) and (ii) the Defendant’s complaint that his defence could not be fairly presented if the case proceeds to trial. Even though the above statements were exculpatory in nature, made out of court and uncautioned, they could well be regarded as being in the nature of first reaction and the prosecution, in principle, does not object to the relevant record to be adduced as evidence if the Defendant so requires (leaving aside semantic and/or substantive differences in such record and the line of defence disclosed herein: see paras. 22-25 of the defence submissions).

17.3  Between September 2016 to August 2020, the Police obtained statements from various witnesses. In particular: -

17.3.1  In light of the line of defence as revealed by the Defendant at the time, the police required to take witness statement from PW1. The prosecution explained that the time taken for PW1 to make and sign his witness statement was unfortunate in light of his frequent absence from Hong Kong, etc. as informed to the Police and, in any event, be a matter of cross-examination by the Defendant at trial.

17.3.2  Further witness statement required to be taken from PW2. The prosecution submitted: as investigated, apart from the apparent complaint that the Defendant was not entitled to the monies he drew by way of cheques into his own account in the nature of embezzlement, there was nothing wrong for the Police to seek a further statement from PW2 where she categorically confirmed the signatures were forged. The time taken for PW2 to make and sign her witness statements was unfortunate in light of her frequent absence from Hong Kong, etc. as informed to the Police and, in any event, be a matter of cross-examination by the Defendant at trial.

17.3.3  The witness statements taken from PW3 were taken within relatively short compass of time, and revealed that the Defendant stole not only from one account but two accounts relevant to HKCC and/or COIS. A total of 41 cheques had been the subject of the complaint before PW2 confirmed in her statement in September 2017 that only 21 cheques would be pursued against the Defendant. At the time when PW3 reported the case and relayed the complaint, the scope of the investigation was by no means insubstantial.

17.3.4  The taking of statement from PW4.

17.3.5  Obtaining extensive bank records (term used in generic sense) which the Police attempted to ascertain and obtain, including those of the accounts of HKCC and COIS, the Defendant’s accounts as well as major counterparties from which funds were transferred from the Defendant’s accounts. These materials were all available not just for use at the instance of the prosecution but also for the Defendant in preparation of his case.

17.4  Between January 2020 to August 2021, time was spent on the seeking of legal advice. The prosecution submitted that the time taken of about 1 year for the consideration of the materials and the giving of the legal advice, in light of the immediate case and the ongoing caseload of the prosecution, is not unreasonable.

17.5  On 10 May 2022, the Defendant was re-arrested and charged. The prosecution submitted that the time taken to locate the Defendant after he was temporarily released on 2017-02-08 was reasonable given that the Defendant no longer needed to report to the Police at intervals or otherwise keep the Police informed of his current address and/or whereabouts.

18.With regard to the complaint of missing information and records, the Prosecution submitted that

18.1  In light of the available evidence at the time that the Defendant acted without authorization and forged signatures of PW2, the very fact of forgery once confirmed by PW2’s 2^nd statement in particular is sufficient evidence at least for investigative purposes to move forward the case without further enquiries and/or evidence preservation. It is not unreasonable for the Police to take such a view indeed as the situation is not a general deficiency case of theft.

18.2  This is not a case where the Police failed to seize relevant materials altogether apart from the taking of the witness statements in the case simpliciter, suggesting a total dereliction of proper investigative duties. The employment records of the Defendant were indeed obtained. Search warrants were applied for bank records in order to investigate into the relevant transactions, with fund flow charts made available. The Police acted reasonably and responsibly in light of the circumstances of the case.

18.3  The absence of such records in the first place, in the course of normal events, means only that the prosecution may not have sufficient and/or additional corroborating evidence showing the Defendant’s involvement in the cheques and/or his dishonest conduct. That said, with a view to resolve the issues and to address the requests by the Defendant, enquiries are in any event being made of PW2 and/or PW3 by the Police as regards inter alia whether email records, etc. in the kind as requested are still available at present. Not privy to the conduct of the defence case, the prosecution can only surmise that the presence of such records even if in favour of the Defendant does not per se negate the evidence of PW2 that her signature was forged, and the objective fact that monies from such cheques were indeed paid into the account of the Defendant who apparently stood to benefit from such payment.

18.4  There was no bad faith and/or serious fault on the part of the Police.

19.As regards the complaint of missing witnesses, the Prosecution submitted that “if one attempts to follow the logic of the line of defence by the Defendant, it appears that the Defendant was instructed by PW3 and PW4 to make the cheques, apparently without authorization to the Defendant’s benefit and then PW3 and PW4 fabricated the present complaint against the Defendant. In such a scenario, it is not easy to see how other witnesses or colleagues of the Defendant would add to or undermine the case against him given the insidious nature of the conduct of PW3 and PW4”.

Decision

20.In all the circumstances of the present case, I do not find the police was under a duty to seize the information and records from King Wai, HKCC and COIS as suggested by the Defence.

21.I find also that the police had acted reasonably in retrieving documents from King Wai, HKCC and COIS and thus there was no bad faith or serious fault on their part.

22.As regards the suggestion of missing witness by the Defence, I find that there is no substance on that ground bearing in mind that the relevant witnesses are PW3 and PW4 who would both be available for the  cross-examination by the Defence.

23.I also find there that the long period taken for the investigation by the police are explicable and reasonable and thus no prejudice was caused to the Defendant.

24.In all the circumstances. I do not find the material advanced by the Defence would render a fair trial impossible.

25.Further, after performing the balancing exercise, I find that the 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.

26.In all the circumstances, the Defence application for permanent stay of proceedings is refused.