HKSAR v. Chan Kau Tai

CACC 26/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 26 OF 2004

(ON APPEAL FROM HCCC NO. 333 OF 2002)

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BETWEEN

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Before:  Hon Tang JA in Chambers (open to public)

Date of Hearing:  31 August 2005

Date of Decision:  31 August 2005

Date of Reasons for Decision: 12 September 2005

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REASONS  FOR  DECISION

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Hon Tang JA (giving the reasons for decision of the Court):

1.This is the applicant’s application for order under section 83V of the Criminal Procedure Ordinance, Cap. 221.

2.It is common ground that there has been non-disclosure of the conviction and the disciplinary record of Chief Investigator Yang. 

3.The hearing of the appeal has been adjourned to 6 December 2005 with 7 days reserved when oral evidence from both sides regarding the non-disclosure would be given.  For that purpose, the parties have been given leave to file further evidence no later than 60 days prior to the resumed hearing.  The prosecution has indicated that they would file four to six further affirmations.

4.Since it is common ground that there was non-disclosure, the further and oral evidence will, I expect, be directed to the reason for the non-disclosure, and perhaps whether the defence had been prejudiced by the non-disclosure.

5.Members of this court at the hearing in January 2005 had expressed the view that the motives for the non-disclosure might have a bearing on the result of the appeal.  Whether it would indeed have a bearing remains to be decided, for as Mr Zervos has rightly pointed out those views were expressed in the course of submissions and they were not the final word on the matter.

6.I should also add that there has been no decision yet on whether the non-disclosure was material nor whether the non-disclosure has rendered the convictions unsafe.

7.Be that as it may I must proceed on the basis that the reason for non-disclosure may be relevant to the determination of the appeal. 

8.This is the applicant’s application for production.  It is a measure of the co-operation between the applicant and the respondent that in the summons dated 30 June 2005, the applicant sought production of 5 items only.

9.The differences between the parties have been narrowed down further, so that I need only adjudicate on 3 of the items.

10.Mr Zervos opposed the application on two grounds:

(1)	the application is premature.  He submitted that the applicant should want for the further evidence which would be filed no later than 60 days before the hearing of the appeal.  Also that:
	“In light of the seriousness of the allegations, it is unfair to those being accused of wrongdoing to have to provide information in a piecemeal fashion and without regard to their rights and to fair and proper procedures.  It has always been the position of the ICAC to answer these allegations in light of the seriousness.”
	para. 7 of his skeleton submission.
(2)	that it is a fishing expedition.

11.I do not believe the application is premature.  We are only three months away from the hearing.  It is true that the parties may file further evidence 60 days before the hearing, but the information sought might be useful to the applicant in the preparation of any evidence which he might file.  If so, obviously he would want them now rather than later.  As for disclosing evidence piecemeal, it is difficult to see how it might prejudice the prosecution.  The court will understand that the prosecution’s full case will not be revealed until all the evidence has been filed.  Moreover, as will be seen when I come to examine the production sought, the production of the documents sought should not prejudice the respondent or any of its potential witnesses.

12.“Fishing expedition” is linked with Mr Zervos’ point that Ground 1 in the Substituted Perfected Ground of Appeal lacks particularity.  This ground alleges that the failure to disclose was deliberate and in bad faith.

13.As I have said I must proceed on the basis that the motive or reason for the non-disclosure may affect the outcome of the appeal.  Plainly, I have power to order discovery to ensure that the court will have all the information and material that is or might be relevant to the issues in the appeal, in order for there to be a just determination of the appeal.  Such power can be exercised if the production was necessary or expedient in the interest of justice.  Mr Blanchflower has referred me to R v Callaghan and Others [1988] 1 ALL ER 257 and R v Latimer and other [1992] NI 45 which show the amplitude of the court’s power under section 83V.  Here, given the admitted non-disclosure, the court as well as the applicant, are entitled to know why no disclosure was made and whether it was deliberate.  Evidence which might bear on this is relevant and should be disclosed.

14.I turn to consider the outstanding items.  They are:

“	(3)	Produce records of the application or authorization, and the documentary results of the criminal record check of Prosecution witnesses conducted by Senior Investigator Nelson Lau Chau-wing;
	(4)	Provide the name of the ICAC Investigator who carried out the check of Chief Investigator Yang’s confidential file pursuant to the request by the Prosecutor on fiat, Mr John McNamara during the Appellant’s trial in November-December 2004; and
	(5)	Provide the name of the ICAC Investigator who was responsible for preparing the ICAC case file of the Investigation against the Appellant for advice by Department of Justice counsel.”

15.Mr Zervos has informed me that, if ordered to do so, production could take place within 7 days.

16.As for (3), Mr Zervos said disclosure has been made of the criminal records obtained and that the other documents would be produced by witnesses in affirmations.  I see no reasons why the documents should not be produced now.

17.As for (4), the respondent has said that further affirmation will be filed in relation to it.  They should be produced now.

18.As for (5), it is said this is not relevant.  I believe it is relevant to the prosecution’s continuing duty to disclose such matters to the applicant and whether such duty had been neglected and if so why. 

19.The outstanding items are all directed to the reasons for non-discovery.  They are narrow in scope and cannot be said to be oppressive. 

20.For the above reasons, I ordered production within 7 days.

21.Lastly, the applicant wanted me to direct that any affirmation to be filed should be filed within 21 days.  Mr Zervos has said that the affirmations would be provided as soon as possible.  Having regard to the fact that there are only some 90 days between now and the hearing of the appeal, such a direction would serve little purpose, since in any event, the affirmations have to be filed 60 days before the hearing.  I therefore did not make the order sought.  Mr Zervos has told me that the respondent would file its evidence as soon as possible.  I hope every effort would be made to ensure that the December hearing would be effective.

22.Costs of this application be reserved.

Mr Kevin Zervos, SC, SADPP and Ms Winnie Ho, SGC, of Department of Justice, for the Respondent.

Mr Michael Blanchflower, SC, instructed by Messrs Simon C W Yung & Co., for the Applicant.