Yeung Chun Pong and Others v. Secretary for Justice

CACV 330/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 330 OF 2006

(ON APPEAL FROM HCAL NO. 123 OF 2005)

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BETWEEN

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Before : Hon Ma CJHC, Stuart-Moore V-P and Stock JA in Court

Date of Hearing : 16 November 2007

Date of Judgment : 9 January 2008

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

Introduction

1.In January 2005 the applicants were committed for trial in the District Court.  When the matter came on for hearing in August 2005, they argued that the trial should not proceed.  They said that in 2002 they had previously been acquitted of the same or substantially the same offences by a court of competent jurisdiction in Macau.  Therefore they advanced the plea of autrefois acquit; but contended in the alternative that the Hong Kong proceedings should be stayed as being an abuse of process because to proceed was to infringe the rule against double jeopardy as it exists outside the strict confines of the plea in bar.

2.Judge Wright, as he then was, dismissed those applications whereupon the applicants launched an application for judicial review which was heard and rejected by Reyes J on 11 August 2006.  This is the appeal from that rejection.

The Macau proceedings

3.In June 2000, the applicants and others were arrested in Macau.  The allegation preferred against them by the Macau prosecutor was twofold: the first was an assertion of illegal betting; the second of ‘exchange, transfer and concealment of illegal assets or articles’, which is a money laundering offence.

4.The investigation document laid before the Macau court asserted that the applicants and others had accepted bets from third persons on Hong Kong horse races, and that the profit gained was placed in an account with the Hang Seng Bank in Hong Kong, numbered 275-8-079095 (the ‘95’ account).  The minimum amount for each bet was HK$100,000 and it was said that between September 1999 and June 2000, six suspects, including these three applicants, received millions of dollars in bets each racing day, and that in that period the sum of HK$187million passed through that account.  On the day of their arrest, bank pass books were seized from the third applicant including the book for the ‘95’ account showing a balance in that account of $2,127,560.91.  The account was closed the same day.  None of the accounts to which the other passbooks related features in the Hong Kong proceedings.

5.By a judgment dated 20 March 2002, the court in Macao, the Tribunal Judicial de Base, held that the betting charge was proved but that the money laundering charge was not; so of the latter charge they were acquitted.  The judgment recites those findings but provides little in the way of reasoning.

The Hong Kong proceedings

6.The first two applicants were arrested in Hong Kong in November 2003 and the third in November 2004.  They became the first, second and fourth defendants in the District Court trial.  The third defendant (D3) was not a defendant in the Macao proceedings, for which reason she was not party to the application to bar or stay the Hong Kong proceedings and has therefore not been a party to the application for judicial review. 

7.There were two charges before Judge Wright:

(1)	against these three applicants, that they conspired to deal with property known or believed to represent proceeds of an indictable offence, contrary to sections 159A and 159C of the Crimes Ordinance, Cap. 200 and section 25(1) of the Organised and Serious Crimes Ordinance, Cap. 455.  The particulars of the offence charged that they:
	‘	… between 30th June 1998 and 3rd September 1999 in Hong Kong … conspired together and with other persons unknown to use a bank account at the Hang Seng Bank, with account number 275-1-076874 in the name of [D2] to deal with property, namely HKD 216,152,319, knowing or having reasonable grounds to believe that the said property in whole or in part, directly or indirectly represented the proceeds of an indictable offence.’
(2)	against D3 alone, that she conspired with the three applicants and others between 27 August 1999 and 5 June 2002 to use the ‘95’ account to deal with property, namely HKD182,466,688, knowing or having reasonable grounds to believe that of that property represented the proceeds of an indictable offence.

8.It can be seen from these two charges that the prosecution was alive to the fact that it could not charge the applicants with the same offence of which they had been acquitted in Macau.  What they sought to do by the first charge in Hong Kong was to prosecute them for a conspiracy said to be evidenced by a time period and a bank account distinctly different from the time period and bank account which the Macau money laundering charge had specified.  However they could and did charge D3 with the Macau money laundering offence because she was never tried in Macau.

In the District Court

9.In the District Court, counsel for the applicants presented what he referred to as a “special plea” namely, the plea of autrefois acquit.  It is clear that at that stage and at first instance in the judicial review, the case was primarily presented as a plea in bar.

10.The plea in bar was put forward on the basis that the commutation or money laundering charge in Macau and the conspiracy charge in Hong Kong were the same allegations in substance and founded upon the same set of facts.  In rejecting the plea, Judge Wright relied on the fact that the offence of conspiracy in Hong Kong is not reflected by the law that prevails in Macau because mere agreement without execution of the acts foreseen does not there amount to an offence; and he considered that that in itself was enough to dispose of the plea in bar.  In addition he noted that account number 275-1-076874 (the ‘74’ account) specified in the first charge did not form part of the accusation or judgment in Macau and that the time spans covered by the allegations in the respective jurisdictions were quite different. 

11.In relation to the application to stay the proceedings, the judge noted the emphasis in HKSAR v Lee Ming Tee[1]that the circumstances in which such an application was likely to succeed would have to be exceptional; and that the mere fact that the applicants had not been charged in Macau with money laundering allegedly evidenced by the ‘74’ account did not demonstrate oppressive conduct on the part of the Hong Kong prosecuting authorities.

The Notice of Application

12.The notice of application for leave to apply for judicial review challenges the judge’s decision by which “the special plea of autrefois acquit failed”[2], and the rejection of the application for a permanent stay of proceedings.  The assertion in the notice is that: “The HKSAR now brings proceedings in Hong Kong relating to a variation of the same factual matrix.  The HKSAR case is but an earlier facet of the very proceedings determined in Macau.”[3] It is further asserted[4] that the plea should have succeeded because the Hong Kong charge related to “part of a series of offences of the same or a similar character as the offences charged in the previous indictment,” a reference to a passage in Connelly v DPP[5], to which we must return.  The issue, it is said, is “whether factually the new indictment was substantially similar to the former one.”[6]

13.In relation to the stay application, the notice asserts that the discretion applies “where the second indictment arises out of the same or substantially the same set of facts as the first”[7] and that the judge failed to appreciate that that discretion should be exercised in favour of an accused unless the prosecution established that there were special circumstances for not doing so.

The judgment under appeal

14.Reyes J held, correctly in our view, that none of the tests of substantial similarity that had been advanced was apposite to a plea of autrefois acquit.  Rather, it merely invited attention to an identification of the elements of the offence and not to what witnesses could or would say.  He rejected the suggestion that this was a case of autrefois acquit.

15.He dealt but briefly with the question of the District Court judge’s discretion to stay the proceedings and his refusal so to do.  He said that he could see no good reason for saying that the exercise of the judge’s discretion was unreasonable.  Further, “autrefois acquit having been rejected by the judge, there was no additional basis for considering a grant a stay on some wider formulation of that plea.”[8]

The plea in bar

16.It is recognized by Mr Lawson QC, for the applicants, who has not previously appeared in this marathon collateral challenge, that the plea in bar was never tenable and, accordingly, he does not pursue the argument.

17.Despite that concession, the history of this case illustrates a need to emphasise the limited boundary of the plea of autrefois acquit and to put to rest the assumption, certainly on the part of those who advanced the plea, that has bedevilled these proceedings until the hearing before us, that the plea was available so long as the two proceedings were in respect of the same or substantially the same set of facts.  It was also the insistence that this was a case of autrefois acquit that opened the door to a collateral challenge, for a rejected plea in bar might properly be the subject of such a challenge whereas the exercise of a discretion in the course of a criminal trial should not be.  Application of the arguability threshold for leave to apply for judicial review recently stipulated by the Court of Final Appeal in Peter Po Fun Chan v Winnie C.W. Cheung & Another[9] will no doubt hereafter serve as a more realistic filter for the type of challenge deployed in this case against the trial court’s autrefois determination.

18.The parameters of the plea are not only narrow but clear and ascertainable by the application of strict logic.  Once it is understood that the plea is an aspect of res judicata, it becomes evident that in order for it to be invoked, it is incumbent upon an accused to identify with precision the previous decision relied upon and, in the context of criminal proceedings, that can only be done by reference to a verdict and the elements of the offence necessarily encompassed by that verdict.

19.The test of autrefois acquit is one directed at the elements of the two offences under comparison.  By this is meant a comparison of the constituent elements in law of the offences charged, and the facts asserted in the charges themselves.  “For the doctrine to apply it must be the same offence both in law and in fact”[10].  This is a “purely legal test of whether the person’s acquittal in the first proceedings necessarily in law involves an acquittal in the second” and covers an “implied alternative acquittal … where the jury could lawfully have convicted the defendant on an alternative charge to the one being tried but have returned no verdict on it.”[11]  It is not a test that compares the testimony given in the previous trial with the testimony that is anticipated in the second trial.  It is this latter notion encouraged by the phraseology of certain judgments – such as the ‘same matter’ in Wemyss v Hopkins[12]– that has caused confusion and a blurring of lines, a confusion that has been exposed in R v Beedie[13], and analysed in depth in Pearce v The Queen[14].  Since it is not a test that examines testimony to be given, its validity or invalidity does not change with emerging testimony.  It is either good or bad ab initio.

20.In R v Barron[15], there were two indictments: one charging sodomy, the second charging an act of gross indecency with another male person.  The appellant’s conviction upon the first indictment was quashed and he was to be tried upon the second.  A plea was raised of autrefois acquit.  The facts to be proved and the testimony to be adduced in support of the second indictment were the same as had been adduced at the trial of the first.  Counsel for the appellant ‘admitted that at the trial upon the first indictment the appellant could not have been convicted of the offence charged in the second indictment and that therefore he was not in peril of being convicted of the lesser offence.  The true test [he contended] whether a plea of autrefois acquit is good is not, however, whether the person charged was in peril of being convicted on a previous trial of the offence subsequently charged.  If the second charge is based upon the same facts and evidence as were proved and adduced in support of the first charge, then the plea of autrefois acquit is good.’[16]  The Court of Criminal Appeal did not agree:

“

The test is not, in our opinion, whether the facts relied upon are the same in two trials.  The question is whether the appellant has been acquitted of an offence which is the same offence as ‘gross indecency,’ i.e. whether the acquittal on the charge of sodomy necessarily involves an acquittal on the charge of gross indecency.  It is quite clear that the jury could not have convicted the appellant of gross indecency at the first trial.  And it equally clear that the acquittal on the graver charge did not necessarily involve an acquittal of the minor offence. … There has … been no verdict that the appellant was not guilty of gross indecency ….’’[17]

This fits perfectly with the principle that underlies the plea, namely, that which requires the identification of a judicial determination, the correctness of which the prosecutor is estopped from controverting in later proceedings.

21.In Pearce[18], counsel for the appellant argued that “a person may not be convicted of two different offences in respect of the same or substantially the same set of facts”[19].  In response, the High Court responded[20] that:

“	It is clear that the plea in bar goes to offences the elements of which are the same as, or are included in, the elements of the offence for which an accused has been tried to conviction or acquittal.”

22.McHugh, Hayne and Callinan JJ then addressed the difficulties which phrases such as “substantially the same” offence, and the “same matter” had created in the context of the plea in bar.  It is a blurring of lines that was central in the case now before us, because it is the concept “substantially similar” that lies at the heart of the applicants’ arguments on review:

“	There are, however, decisions that a person may not be prosecuted for one offence when that person has previously been prosecuted for “substantially the same” offence, or for an offence the “gist” or “gravamen” of which is the same as the subject of the earlier prosecution or, as was said in Wemyss v Hopkins [(1875) LR 10 QB 378], for the “same matter”.  It may be suggested that these cases indicate that a plea in bar is also available if a person is charged with different offences arising out of substantially the same set of facts.
	Much of the difficulty in determining whether a plea in bar is available when a person is charged with different offences arising out of substantially the same facts can be seen to stem from two sources: first, the uncertainties inherent in the proposition that it is enough that the offences are “substantially” the same; and secondly, the attempt to identify the “sameness” of two offences by reference to the evidence that would be adduced at trial.  But these difficulties may be more apparent than real.
	… [where the test has been identified as being whether the evidence necessary to support the second prosecution would have been sufficient to procure a legal conviction upon the first] … the inquiry suggested … is an inquiry about what evidence would be sufficient to procure a legal conviction.  That invites attention to what must be proved to establish commission of each of the offences.  That is, it invites attention to identifying the elements of the offences, not to identifying which witnesses might be called or what they could say.  It is only if attention is directed to what evidence might be given, as opposed to what evidence was necessary, that the inquiry begins to slide away from its proper focus upon identity of offence to focus upon whether the charges arise out of the same transaction or course of events.
	Further, when it is said that it is enough if the offences are “substantially” the same, that should not be understood as inviting departure from an analysis of, and comparison between, the elements of the two offences under consideration.
	…
	On closer analysis, … it may be that Wemyss and other cases that are said to support the proposition that a plea in bar is available when a person is charged with different offences arising out of the same set of facts do not do so.  Moreover, there are sound reasons to confine the availability of a plea in bar to cases in which the elements of the offences charged are identical or in which all of the elements of one offence are only included in the other.
	Shifting attention to whether the offences arise out of the same conduct, or out of a single event or connected series of events, would be to substitute for a rule prohibiting prosecution twice for a single offence a rule that would require prosecuting authorities to bring at one time all the charges that it is sought to lay as a result of a single episode of offending.  That would raise still further questions.  How would a single episode of offending be defined?  Would its limits be temporal or would they be found in the intentions of the actor?
	Those are not questions that admit of certain answers and, whatever criteria are adopted, are not questions that could readily be answered at the time an accused enters a plea.  In any event, such a test would … shift attention away from the principal focus of the rule underlying the pleas in bar which is a rule against repeated prosecution for a single offence.  It would be a test which would deny operation to some or all of the three other forces at work in this area: that several different offences may be committed in the course of a single series of events, that an offender can be punished only for the offence charged, not some other offence, and that charges will usually be framed in a way that reflects all of the criminal conduct of the accused.”[21] (Emphasis added).

23.The same narrow ambit of the bar was highlighted by Rose LJ in Beedie, above[22]:

“	… Mr Smith was inclined to concede that Clarke J.’s analysis of the speeches in Connelly v Director of Public Prosecutions was correct, namely that the majority of the House of Lords identified a narrow principle of autrefois acquit, applicable only where the same offence is alleged in the second indictment.  In our judgment this concession was rightly made.  Lord Devlin said, at pp. 1339- 1340: ‘For the doctrine to apply it must be the same offence both in fact and in law,’ and he went on, having rejected the idea that an offence may be substantially, rather than precisely, the same as another in its legal characteristics, to reject the suggestion that autrefois applies in favour of an accused who has been prosecuted on substantially the same facts.  Lord Pearce, at p. 1368, agreed with the opinion of Lord Devlin.  Lord Reid said, at p. 1295:
	‘	Many generations of judges have seen nothing unfair in holding that the plea of autrefois acquit must be given a limited scope … I cannot disregard the fact that with certain exceptions it has been held proper in a very large number of cases to try a man a second time on the same criminal conduct where the offence charged is different from that charged of the first trial.’
	It follows that we are unable to accept the view of the editors of Archbold's Criminal Evidence, Pleading and Practice expressed in earlier editions, and in paragraph 4-117 of the 1997 edition, that Lord Morris of Borth-y-Gest’s speech, and in particular his third and fourth principles expressed at p. 1305 (that the principle of autrefois applies to offences which are the same, or substantially the same, and an appropriate test is whether the evidence to support the second indictment of the facts constituting the second offence would have been sufficient to procure a conviction on the first indictment), represents the ratio of the House’s decision.  Clarke J.’s analysis was correct.  The majority of their Lordships in Connelly v Director of Public Prosecutions defined autrefois in the narrow way which we have described, that is when the second indictment charges the same offence as the first and said that judicial discretion should be exercised in other appropriate cases.  Lord Morris and Lord Hodson took the view that no such discretion existed.”

See also United States v Dixon[23] that restored the test in Blockburger v United States[24] that:

“	… where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.”

24.This rule, limiting application of the plea to elements of the respective offences, renders it a rule that is inherently consistent in its operation and one that in practice should not be difficult to resolve.  To go beyond these precise and readily ascertainable boundaries is to introduce uncertainty, and to ignore the underlying premise for the rule.  It is to introduce those multifarious considerations that are appropriate to another vehicle altogether, namely, the exercise of a judicial discretion in the context of an application to stay proceedings on the basis of oppression or abuse of process. That is the exercise to which this appeal has narrowed and to which we now turn.

Jurisdiction to stay

HKSAR v Lee Ming Tee & another[25], in which Ribeiro PJ cited[26] Lord Lane CJ in A-G’s Reference (No 1 of 1990)[27] in relation to grounds other than delay:

“

The abuse alleged may arise in many different forms.  It may involve complaints about the methods used to investigate the offence. … It may be based as Connelly v DPP … itself was, on the allegation that the defendant has been 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 … .”(Emphasis added).

It is the ground there emphasized that is pursued in this review and upon this appeal.

26.Their Lordships in Connelly decided that the courts had the power to stay proceedings where, although the plea in bar could not be made out because the second trial was not for the same offence, the charges in the later case were founded on the same or substantially the same facts as the charges in a previous indictment on which the accused had been tried to conclusion.  They thereby endorsed the spirit of the rule against double jeopardy where it applies outside the strict limits of the plea in bar saying that there was no reason why the two pleas ‘should exhaust the inherent power of the court.’[28]

The same or substantially the same facts

27.The issue in this case is how far that rule goes and whether the prosecution of the applicants in this case falls foul of it.

28.The rule against double jeopardy upon which the applicants rely extends beyond, although of course it includes, the strict limitations of the plea in bar to the general notion that someone should not be re-prosecuted ‘on the same or substantially the same facts’ upon which earlier charges, which have been determined, were based.  This, as we have seen, is the test to be avoided in examining the plea in bar, but which is apt in assessing whether prosecutorial conduct has nonetheless infringed the principled injunction against placing in jeopardy someone who has already been prosecuted and convicted or acquitted for the same matter.  The purpose of the rule is to prevent oppression of an accused, oppression constituted by occasioning the accused ‘… embarrassment, expense and ordeal and compelling him to live in a constant state of anxiety and insecurity’[29] and it is undoubtedly within the court’s power to prevent such oppression.  The rule has a further rationale, which is to guard against an abuse of prosecutorial power whereby the chance of a conviction of someone who may be innocent may be enhanced by repeated prosecutions.[30]

29.The point is encapsulated thus in the Notice of Application, that:

“

… even if [in this case] autrefois acquit is strictly inapplicable, the Judge has a  discretion to stay the proceedings where the second indictment arises out of the same or substantially the same set of facts as the first.  That discretion should be exercised in favour of an accused unless the prosecution establishes that there are special circumstances for not doing so.”[31]

30.According to the applicants[32] the relevant test to be applied is “whether the defendant [is] being sought to be prosecuted ‘on the same or substantially the same facts’ as gave rise to a previous acquittal”; a test that is said to be non-contentious, leaving in contention the application or the meaning of that test.

31.The test is culled from a passage in R v Z[33] where Lord Hutton said that:

“

The principle of double jeopardy operates to cause a criminal court in the exercise of its discretion, and subject to the qualification as to special circumstances stated by Lord Devlin in Connelly's case, at p 1360, to stop a prosecution where the defendant is being prosecuted on the same facts or substantially the same facts as gave rise to an earlier prosecution which resulted in his acquittal (or conviction), as occurred in Reg v Riebold [1967] 1 WLR 674 and the cases cited by Lord Pearce in Connelly’s case, at pp 1362–1364, and see also Reg  v Beedie [1998] QB 356.”

32.The argument in the present case seems to be that because the root of the alleged laundering in both sets of prosecutions was the same, namely, unlawful gambling in Macau on Hong Kong races, it follows that it is proposed in Hong Kong to prosecute the applicants on the same or substantially the same facts.  We fail, with respect, to see how that can be so.

33.In the context of the notion of double jeopardy the meaning of the phrase “on the same or substantially the same facts” is clear enough.  What is envisaged is prevention of a second or further prosecution for the same incident, the same event, the same transaction, the re-litigation of a decided matter, the need for protection of a defendant ‘against the repetition of charges after an acquittal or even after a conviction which was not followed by a punishment severe enough to satisfy the prosecutor’,[34] a warning that finds an echo in Mr Lawson’s suggestion that had these applicants been convicted in Macau on the money laundering charge, it is unlikely that the Hong Kong prosecution would have been launched.  This concentration upon the same incident, transaction or event is clear from an appreciation of the principle of double jeopardy and from authority. 

34.In R v Phipps[35] Clarke LJ stated[36] that:

“

The authorities do not consider in detail what is meant by the same or substantially the same facts but, in our view, as Lord Pearce makes clear [in Connelly] they essentially mean that the Crown should not be permitted, save in special or exceptional circumstances, to bring a second set of proceedings arising out of the same incident as the first set of proceedings after the first set of proceedings has been concluded.  The principle (which is in essence that identified in the civil law by Wigram CJ in Henderson v Henderson ) is that the Crown should decide at the outset, or at the latest before the conclusion of the first set of proceedings, what charges it wishes to bring arising out of the same incident.  Any other approach is unfairly oppressive to a defendant.  It is for that reason that the burden is on the Crown to identify special or exceptional circumstances to justify such a course.” (Emphasis added)

35.The reference there to the speech of Lord Pearce in Connelly is to that part which addresses the court’s inherent jurisdiction extending beyond the strict limits of pleas in bar to prevent in criminal proceedings re-litigation of decided matter.  The existence of that power is illustrated by a number of cases cited by his Lordship[37] including Wemyss v Hopkins[38] where successive prosecutions were founded ‘on one and the same incident’[39] namely, the conduct of a driver of a carriage in striking at a horse thereby injuring its rider, from which single incident were constructed two separate offences.  Lord Pearce said that the cases discussed:

“

... showed that a narrow view of the doctrines of autrefois acquit and convict … does not comprehend the whole of the power on which the court acts in considering whether a second trial can properly follow an acquittal or conviction.  A man ought not to be tried for a second offence which is manifestly inconsistent on the facts with either a previous conviction or a previous acquittl.  And it is clear that the formal pleas which a defendant can claim as of right will not cover all such cases.”[40] (Original emphasis).

36.In R v Z, above, Lord Hutton analysed the decision of the House of Lords in DPP v Humphrys[41]and stated that in his opinion:

“

… the speeches in the House recognised that as a general rule the circumstances in which a prosecution should be stopped by the court are where on the facts the first offence of which the defendant had been convicted or acquitted was founded on the same incident as that on which the alleged second offence is founded.”[42] (The first emphasis is original; the second is added).

37.R v Beedie[43] provides a further example of a case in which the plea of autrefois acquit did not run but a stay was granted because the second prosecution was based on substantially the same facts.  The defendant was the landlord of a property in which a young woman died of carbon monoxide poisoning caused by the use of a defective gas fire.  The defendant pleaded guilty to an offence under the Health and Safety at Work of Act 1974 of failing in his undertaking as a landlord to ensure our the safety of the deceased by maintaining the fire and flue in good repair and proper working order. Subsequently he was charged with manslaughter and upon rejection of a plea of autrefois convict, he pleaded guilty.  The conviction was quashed on appeal because the court was of the opinion that:

“	A stay should have been ordered because the manslaughter allegation was based on substantially the same facts as the earlier summary prosecutions, and gave rise to a prosecution for an offence of greater gravity, no new facts having occurred … .’’[44]

38.In R v Reibold[45] the prosecution, having elected upon the first trial to proceed only upon one of two counts of conspiracy, sought leave to proceed with the second trial upon some of the remaining counts that had been left on the file in earlier proceedings.  Barry J. refused leave on the grounds that:

“

… what the prosecution seek to do is to secure a retrial of this whole case, and I am equally satisfied that, if such retrial were to take place, it would become a complete reproduction of the trial which took place last year at some considerable length … . The issues would be entirely the same …  I am told, and I accept, that the subject-matter of the remaining charges … did in fact constitute the whole of the overt acts of the conspiracy on which the prosecution relied, and there were no additional factors or evidence on which the prosecution relied in order to secure a conviction on the conspiracy charge.  Therefore, it does seem to me to be entirely clear that, not only have the accused been in substance tried on these other charges, but also any retrial of them would amount to a complete reproduction of the previous trial.”[46]

39.I have mentioned Mr Lawson’s rhetorical question whether the Hong Kong proceedings would have been launched had there been a conviction in Macau.  The point is a refrain of one made in applications of this nature, which is not to say that it is not worth raising, but it is one which it will not always be possible to assume as correct or, in any event, as decisive.  It was a point made in R v Williams & Wilson,[47] worthy of citation here because the case is analogous to the present and illustrative, by contrast to the cases thus far cited, of the boundary of the phrase under consideration.  In that case, the accused had pleaded guilty to offences in 1962 of demanding money by forged documents to the tune of £4,900 and of endeavouring to procure a further payment of about £5,500 and had asked for a number of other offences, involving about £25,000, to be taken into consideration.  They were bound over for three years and ordered to make restitution to the extent of £30,000.  However, in 1964 they were indicted on similar charges for alleged offences in 1961 of procuring payments amounting to £35,000.  An application to stay the proceedings was rejected by the trial judge, a rejection upheld by the Court of Criminal Appeal, which referred to the injunction of Lord Pearce in Connelly[48] against re-litigation of decided matters.  Lord MacDermott L.C.J. noted that Lord Pearce had in that context addressed:

“

… the bringing of charges which are based on the same facts or referred to what are in substance if not in form the same offences. The procedure here adopted by the Crown was not the repetition of charges based on the same facts, but the preferring of new charges relating to different sums of money which had been fraudulently obtained by the use of a different set of forged documents.”[49]

This case

40.Williams & Wilson apart, the present case is not within the same category as the cases cited.  The Hong Kong prosecution is directed at the use of a bank account quite separate from that which was the subject matter of the Macau proceedings; an account that did not even feature in the evidence in Macau.  The substantial sum said in the Hong Kong proceedings to have passed through the ‘74’ account was a sum different from that which passed through the ‘95’ account; and the period during which the money laundering is said in the Hong Kong proceedings to have taken place was quite different, save for an overlap of a few days, an overlap of no significance.  The alleged act of money laundering is a different act of money laundering from that asserted in Macau: different as to time; different as to amount; and different as to the vehicle utilized.

41.In such circumstances, the Macau trial hardly reflected the same criminality, let alone the same facts, or the same incident, or the same event, as those covered by the Hong Kong proceedings.  The new charge does not seek a re-litigation of a decided matter.  A conviction in Hong Kong on this charge would not be inconsistent on the facts with the acquittal in Macau.  Nor is this a charge on the same facts in some aggravated form.  

42.In our judgment, the point is not, and never has been, arguable.

Part of a series of offences

43.The rejection of the plea in bar and of the suggestion that the Hong Kong case is a prosecution on the same or substantially the same facts, leaves the applicants’ case reliant solely on the suggestion that the prosecutors in Macau could have prosecuted at the same time for the offence now charged in Hong Kong because the offence now charged forms part of a series of offences of the same or similar character as the Macau charge in respect of which the applicants were acquitted; and that, having failed to do so, it is oppressive or otherwise an abuse of the process of the Hong Kong courts now to proceed against the appellants.  It is a point mentioned in the course of argument before Judge Wright, on the basis that it was a matter that ‘perhaps could have been dealt with before.’[50]  It was addressed by the judge briefly[51] but if it was intended to be a discrete point in the Notice of Application or in the Notice of Appeal, it does not, in my view, emerge as such.  Nonetheless, it has been developed and emphasized in argument before us, so it falls to be addressed.

44.Its genesis lies in the following passage from Connelly[52]:

“

As a general rule a judge should stay an indictment (that is, order that it remain on the file not to be proceeded with) when he is satisfied that the charges therein are founded on the same facts as the charges in a previous indictment on which the accused has been tried, or form or are a part of a series of offences of the same or a similar character as the offences charged in the previous indictment.  He will do this because as a general rule it is oppressive to an accused for the prosecution not to use rule 3 where it can properly be used. But a second trial on the same or similar facts is not always and necessarily oppressive, and there may in a particular case be special circumstances which make it just and convenient in that case.  The judge must then, in all the circumstances of the particular case, exercise his discretion as to whether or not he applies the general rule.” (Emphasis added)

45.The reference there to rule 3 was to rule 3 of Schedule I of the Indictments Act 1915 (now rule 9 of the Indictment Rules 1971) which gave power to prosecutors to join in the same indictment charges that were ‘founded on the same facts or are part of a series of offences of the same or a similar character’; a power that is conferred in Hong Kong by rule 7 of the Indictment Rules, Cap. 221.

46.The permissive terms of the rule have been converted into a requirement that as a general rule prosecutors must, in the absence of good reason to the contrary, join such charges in the same indictment,[53] with the exception of charges of murder which should not be complicated by having alternative or additional counts in the indictment.[54]

47.Whether an offence forms part of a series of offences of a similar character is tested by asking whether there is a nexus between them, taking into account both the applicable law and the facts: Ludlow v Metropolitan Police Commissioner[55], a case that, incidentally, is illustrative of the distinction between prosecutions founded on the same facts and prosecutions for charges not so founded but that form part of a series of a similar character.

48.We are satisfied that the alleged offences underlying the ‘95’ and the ‘74’ accounts have sufficient nexus so as to bring them within the rule were a Hong Kong prosecutor contemplating both charges.

49.But that is not the situation with which the judge below was faced.  He was being asked to say that the Macau prosecutor ought to have charged both offences.

Foreign prosecutions

50.Rule 7 of the Indictment Rules has no application in this case because the Hong Kong prosecutor has not at any stage sought to split an indictment, or to defer the laying of a second indictment.  The omission – a term we use neutrally, not necessarily connoting a deliberate decision – to include a charge relating to account ‘74’ was that of the prosecutor or the court of another jurisdiction.  We say ‘the prosecutor or the court’ because we know not who takes such decisions in that jurisdiction, it being a civil law system in which courts are known to exercise an investigative as well as an adjudicative function.

51.It is established that the doctrines of autrefois acquit and autrefois convict apply to acquittals and convictions in a foreign jurisdiction, though in the case of autrefois convict only if the defendant has truly been in jeopardy”: Thomas[56]; R v Roche[57]; Aughet[58]; Thomas[59]; Friedland, Double Jeopardy[60]; and R v Cheong[61].  

52.Cheong was not an autrefois case.  It was a ‘same fact’ case.  In 1982 in Guyana the defendant had fatally shot a man who had robbed the defendant’s wife and attempted to rape his sister.  He was prosecuted there for unlawful possession of a firearm for which offence he received an admonishment.  In 1984, the defendant moved to the United Kingdom where in 2003 his wife made a report to the local police, as a result of which the defendant was prosecuted for murder and convicted of manslaughter in respect of the 1982 killing in Guyana.  There was jurisdiction to try him in the United Kingdom because he was a British subject.[62] On appeal – not, we note, by way of collateral challenge – he contended that the trial judge erred in not staying the proceedings.  One of the grounds for the application to stay was that the prosecution in England offended the rule against trying a person on successive occasions for offences in ascending order of gravity which arose out of the same set of facts, absent special circumstances.

53.Mitting J, giving the judgment of the Court, posed the question[63]: ‘In what, if any, circumstances can the acts of a foreign prosecuting authority exercising powers in respect of which an English prosecuting authority has concurrent power to prosecute for homicide require an English court to stay prosecution for homicide in England?’.  The court acknowledged that it was established that a defendant could avail himself in such circumstances of a plea in bar of autrefois convict or acquit.  “But,” he added[64], “there is not, as far as we are aware, any other set of circumstances in which criminal proceedings in England have been stayed because of the acts of foreign prosecutors or courts.  The question must, therefore, be answered on principle.”  

54.What then followed is instructive for present purposes:

‘	15.	The rule in Beedie [that no one can be punished twice for offences arising out of the same substantially the same set of facts, except where the prosecution demonstrates special or exceptional circumstances] does not provide an answer for at least the following reasons:
		(1)	Its foundation is the analogy with the rule in civil proceedings in Henderson v Henderson[65]: only one set of proceedings between the same parties, arising out of the same subject matter may be brought in the absence of special circumstances.  In criminal proceedings the Crown is treated as the same party, even if, within the jurisdiction, its powers are exercised by different bodies with different powers.  That is in principle because the Crown, exercising its domestic jurisdiction, is indivisible and there are practical means by which any difficulty arising from separation can be overcome by consultation and cooperation between the two. … But a foreign prosecuting authority as an organ of a foreign state is not in the same position.  It is in fact and in law wholly separate from the Crown and consultation and co-operation will not always be an available option.
		(2)	There are practical difficulties in determining what a foreign prosecuting authority did and what were the circumstances in which it decided to act as did – exemplified by the difficulties present in this case. It was impossible to know precisely what evidence the Guyanese DPP had when he took the decision only to prosecute for a firearms offence, nor what his reasons were for declining to prosecute for homicide.  In the absence of material upon which those questions can be reliably determined, it would be impossible to determine whether or not special circumstances existed to displace the Beedie presumption.
		(3)	The Crown has a statutory power to prosecute British subjects for homicide committed overseas.  Such a power can only be fettered if there is a principled basis for doing so.  The Beedie principle does not provide such a basis.  Why should a particular decision by a foreign prosecutor by itself (our emphasis) prohibit an English prosecuting authority from prosecuting for homicide?
	16.	The principled fetter is to be found, and found only, in the principles explained in Beckford[66]: that the defendant cannot have a fair trial or that he cannot fairly be tried.  There may be circumstances in which the decision of a foreign prosecuting authority not to charge an offence of homicide may make it unfair to try a British subject under section 9.  It is necessary in each case in which the issue was raised to enquire into, and examine with care, the particular facts.’

We would in passing, and with respect, suggest that the phrase used in Beckford[67]: ‘that it would be unfair for him to be tried’ is preferable to the one used in Cheong, namely, ‘that he cannot fairly be tried” for the former more clearly highlights the relevant distinction between a true impediment to the proper presentation of a defence, on the one hand and, on the other, oppression occasioned by repetitive trials.

53.The present case is one step further back from Cheong in that Cheong was a same fact case and this one is not.  The suggested abuse can only arise in this case on the argument that the prosecutor in the first case not only could, but also should, have brought the charges at the same time.

54.It so happens in this particular case that that question was explored, albeit in no great depth, in the cross-examination of one of the experts called in the District Court.  The Macau lawyer, Mr Redhina, who had acted in Macau for these applicants, confirmed that during the trial in Macau no reference was made to the ‘74’ account[68].  Mr Freitas, called by the prosecutor, but who was not involved in the Macau trial, suggested in his statement referred to at trial that the ‘74’ bank account was not “included in the consideration in the scope of the criminal action that was judged in Macau” and had been detected by the legal authorities in Hong Kong[69]; but one knows not whether he was thereby excluding any knowledge of that account by the Macau authorities.  He said however that ‘if, in the course of the hearing that took place in Macau the existence of account [‘74’] were mentioned, which was not described in the accusation or in the indictment, in case that it considered that this imports a non-substantial alteration of the facts for which the defendant has been accused of, then it should grant the defendant time limit sufficient to prepare for his defence; in the case that considered that this imports a substantial alteration of the facts referred to in the accusation (and/or indictment), then the judge could not know this fact in the hearing (and, therefore, in the judgment) and notify them to the Department of Justice for autonomous investigation.’[70]

55.Mr Freitas was cross-examined and he said[71]:

“	If the other bank account had been mentioned the result of the verdict would not be changed.  I can only say if another bank account had been mentioned it would certainly request an investigation on it so that it could be an object of accusation and judgment.
	Q.	… Suppose the Macanese investigating authorities chose not to include that bank account; they knew about it but chose not to include it in the accusation … and the trial proceeded as in this case to an acquittal could they bring a fresh accusation respecting the bank account that they had deliberately omitted?
	A.	It’s not easy answering your question because it might imply on strategy of investigation.  If the investigation of this other bank account or in an abstract way of any other fact requests a longer investigation in the case of defendants who have been in prison because the proceedings with detainees … have a very short deadline to be dealt with, therefore this other bank account or another fact could be left for an autonomous investigation.
		…
	Q.	Suppose the investigation into the other bank account was completed and there was a deliberate decision not to rely on it, could that matter be revived in a separate, autonomous prosecution?
	A.	In terms of criminal investigation, the police can wait for a better opportunity to obtain proofs, to obtain -- yes, better proofs.  In the police a case can be waiting for more proofs and waiting for more proofs and it only goes forward when more proofs come to the table.”

The matter was pressed upon an assumption that the investigation into two bank accounts had been completed but a decision was made to proceed only against one: Could they proceed, it was asked, with a fresh prosecution in relation to the other?  He answered[72]:

“

It’s a complicated matter because technically the prosecution should have made a statement saying that it would leave behind, would file a procedure on this other bank account for these reasons and therefore only carry on the procedures with only one of the bank accounts. … Therefore not making this statement there is nothing blocking … since the prosecution has not made this statement according to Macanese law there is nothing stopping – there is nothing blocking, there is nothing to block a reopening of investigations based on a criteria of the investigator.”;

and it would seem, from what he went on to say, that the court in Macau would not have the power to stop the second prosecution in those circumstances.

56.We cite these passages not in order to draw any conclusion as to Macau law or what happened in Macau, save that it is perfectly clear that the ‘74’ account never featured in any way in those proceedings, but to illustrate, rather, how far removed such a two-jurisdiction setting, with two quite different legal systems, can be from that envisaged by rules directed at the responsibilities of a prosecuting authority within one jurisdiction.  What we are asked to say in this case is that the general rule that requires the Hong Kong prosecutor to include in the same indictment all charges that are part of a series of offences of the same or a similar character must, absent special reason, somehow be deemed to have been a duty upon the prosecuting authority in another jurisdiction; and that we must also assume that that jurisdiction had before it all the relevant information and resources to pursue the wider inquiry and prosecution.  

57.Save in the most clear-cut case, it will be difficult to travel this route, where another jurisdiction has its own system of inquiry, including, perhaps, judicial inquiry; its own time limits for bringing defendants before the courts, time limits that may impinge upon the ability to bring charges, especially in commercial cases, at the same time; and where it will be difficult to ascertain what information precisely was in the hands of the investigating authorities at a given time and to adjudge reasons for not pursuing one course or another.  That is not to say that foreign proceedings are never relevant for the purpose of determining whether a local proceeding might, by reason of the earlier proceeding, be oppressive.  But we are concerned here not with an autrefois acquit situation, nor with a same fact case but with a case in which we are asked to second-guess what prosecuting and judicial authorities in another jurisdiction, with a system of law entirely different to ours, could and should have done in terms of their investigation.  We do not think – in this instance at least – that we should be taking such a course.  We would add that in this particular case there is not even a suggestion that these applicants were ever questioned or otherwise investigated about accounts other than the one covered by the Macau proceedings.

58.The applicants have placed much reliance on a decision of the Court of Appeal in England in Fofana and Belise v Deputy Prosecutor Thubin Tribunal de Grande Instance de Meaux, France[73]in which that Court held that an extradition from France was barred on the ground of double jeopardy. In the realm of deciding what is and what is not an abuse of process, we have considerable reservation about the utility of comparing one case with another.  Decisions of this kind are essentially fact sensitive and we see nothing in Forfana that establishes principle not already well traversed; and in any event, the facts have little parallel with this case.  Proceedings had been commenced in the United Kingdom in June 2005 for using a false instrument to secure products from a French company.  In the same month, an arrest warrant was issued in France for the same defendants and there is some suggestion in the judgment that the French proceedings took the facts little further; this being but one of the reasons that the proposed extradition was stayed.  All relevant information in respect of all relevant conceivable charges had been in the hands of the prosecuting authorities in the United Kingdom whose conduct could readily be assessed by the courts in whose jurisdiction they operated, namely, the English courts, which was not called upon to second-guess anything at all about the state of information in the hands, or the domestic obligations, of an investigating or prosecuting authority of another jurisdiction.  The case was an exercise in comparing one set of facts with another but, more particularly, that factual comparison transpired to be but part of the Court’s reasoning in holding that the extradition would be an abuse.  Lord Justice Auld said that the Crown Prosecution Service proceeded with and narrowly confined its prosecution in the full knowledge of the pending and more broadly based extradition proceedings and had also caused the extradition proceedings to be delayed until after the completion of the United Kingdom prosecution.[74] This is a picture entirely different from our present case.

Conclusion

58.We are of the opinion, for the reasons we have provided, that there is occasioned no abuse of process in this case.  Accordingly, the appeal is dismissed and we make an order nisi that the costs of the appeal be to the respondent.

Addendum

59.This case provides an opportunity to say something about the use of collateral challenges to criminal proceedings in train and about the fashion that has developed in this jurisdiction –as elsewhere – of making stay applications, and to remind the courts, without derogating from their duty to prevent abuse, of the boundary between the courts’ function and that of the prosecutor.

Collateral challenges

60.This case is a good example of what can happen as a result of collateral applications in criminal proceedings:

(1)	Collateral proceedings were commenced after the committal proceedings in the magistrates’ court.  As long ago as January 2005 in the course of those committal proceedings, those acting for the applicants raised a plea of autrefois acquit and, alternatively, invited the magistrate to stay the proceedings.  The magistrate ruled that he had no jurisdiction to hear either application.
(2)	An application was then made to the Court of First Instance for leave to apply for judicial review.  Reyes J granted the application and made an order of mandamus requiring the magistrate to hear and determine the matter.  But that order was then the subject of an appeal.  In a decision handed down on 22 July 2005, the appeal was allowed[75].
(3)	When the case came for trial before the District Court, the plea in bar was raised again, coupled with an application in the alternative, to stay the proceedings as constituting an alleged abuse of the process of the court.  The plea was rejected by Judge Wright on 31 August 2005, and he also ruled that there were no grounds to justify an order that the proceedings be stayed.
(4)	There was then another application for leave to apply for judicial review.  On 3 October 2005 Reyes J granted leave.  Then the Secretary for Justice applied for that leave to be set aside.  On 10 November 2005 Reyes J refused to set aside leave.
(5)	An appeal was launched from that refusal.  By reason of that appeal, the trial date, 20 February 2006, was vacated.
(6)	The appeal by the Secretary for Justice was dismissed in March 2006[76].  The Secretary did not argue, as he might have, that the plea of autrefois acquit was unarguable and that leave should therefore have been refused. We took the view that a plea properly raised could be challenged in collateral proceedings.  So the matter went back to Reyes J to determine the application for judicial review of Judge Wright’s decision.
(7)	Reyes J delivered his judgment on 11 August 2006.  He dismissed the application for judicial review.
(8)	In November 2006 the Court of Final Appeal dismissed an appeal from this court’s 2005 decision in relation to the power of a magistrate to entertain pleas in bar in committal proceedings and dismissed that appeal.[77]
(9)	In the meantime the applicants launched their appeal to this court against the August 2006 decision of Reyes J.  This is that appeal.

60.The applicants were arrested in Hong Kong in 2003 and 2004.  Yet here we are, years later, still dealing with a collateral challenge.  This history well illustrates why courts instinctively baulk at collateral challenges in criminal proceedings and why they should be rare. In our 2006 decision, we explained why an arguable plea in bar was properly the subject of a collateral challenge but the ambit of such a plea is narrow indeed and was never arguable in this case; and what we now find is that the plea issue is abandoned, nearly three years after it was first raised and made the centerpiece of the case.  This is not an edifying history.

61.The argument about the plea in bar is properly abandoned.  It was never maintainable and the amount of time and the delay occasioned by this meritless argument is singularly unfortunate.  That is not to say that where there is an arguable plea in bar there should not be such a challenge; although a well-founded plea in bar will be a rare animal indeed.  But it is to say that collateral challenges to refusals of applications for a stay of proceedings, decisions that are made in the exercise of the trial court's discretion, should, save in the most exceptional circumstances, not be entertained.

62.It is trite that judicial review is a remedy of last resort, and that where another adequate remedy is provided, that alternative should normally be used.  That is not to say that where an alternative remedy exists – and the suggested alternative in this case is the appeal procedure provided by statute – judicial review is necessarily precluded.  But the general principle is that:

“	… save in the most exceptional circumstances, that [judicial review] jurisdiction will not be exercised where other remedies were available and have not been used.”
	per Sir John Donaldson M.R. in R v Epping and Harlow General Commissioners ex p. Goldstraw[78].

63.There is a clear public interest in ensuring that charges, once before a court, must be tried.  There is built into the system a host of safeguards to secure for an accused a fair, and an appropriately speedy, determination.  If those safeguards are not afforded in a particular instance, there is provided by the legislature a prescribed appeal mechanism.  That mechanism does not envisage interlocutory appeals or collateral challenges.  That is for very good reason, namely, that in practice most trials would constantly be interrupted to the disadvantage of effective decision-making and the disruption of the system as a whole.  Sometimes disruption to and delay of a particular trial caused by a judicial review application – or even by repeated applications in the one case – may derail a prosecution properly brought by the effect of that delay upon witnesses or their availability.  This disruption may find aggravated form as in the present case, where there is an ex parte application made for leave; leave is granted without hearing the prosecutor respondent; an application is then made to set aside leave; that is refused; there is an appeal from that refusal, an appeal that may find its way to the Court of Final Appeal and, if the leave is not disturbed, there is a judicial review and renewed appeals from whatever decision emerges therefrom; and whilst all this is going on, hearing dates for trial are repeatedly vacated.  The outcome is that unwarranted applications to stay proceedings combined with collateral challenges themselves run the risk of abusing the court’s process.

64.These warning notes echo those in other judgments in this jurisdiction.  See, for example, Commissioner for Labour and another v Jetex HVAC Equipments Ltd[79]; and Secretary for Justice v Lee Wai Man[80], though the long outdated threshold test for leave to which that latter judgment referred has now been altered by the Court of Final Appeal in Peter Po Fun Chan[81].

65.In R v DPP ex p. Kebilene[82], one of the challenges upon judicial review was to a decision to prosecute; as to which Lord Steyn expressed the fear[83] that the potential for ‘undermining the proper and fair management of our criminal justice system were such challenges permissible,’ may be considerable.  He went on to say:

“	Counsel for the applicants accepted that there is a common law principle independent of section 29(3) [of the Supreme Court Act 1981] which provides a strong presumption against the Divisional Court entertaining a judicial review application where the complaint can be raised within the criminal trial and appeal process.
	….
	… I would rule that absent dishonesty or male fides or an exceptional circumstance, the decision of the Director to consent to the prosecution of the applicants is not amenable to judicial review …. .  While the passing of the Human Rights Act 1998 marked a great advance for our criminal justice system it is in my view vitally important that, so far as the courts are concerned, its application in our law should take place in an orderly manner which recognises the desirability of all challenges taking place in the criminal trial or on appeal.  The effect of the judgment of the Divisional Court was to open the door too widely to delay in the conduct of criminal proceedings.  Such satellite litigation should rarely be permitted in our criminal justice system.”[84] (Emphasis added)

66.In the context of alleged abuse of process, an application for judicial review in such cases is not only one that is collateral to ongoing criminal proceedings but relates to an exercise of discretion; and it must follow that the circumstances in which a court should entertain applications for leave to apply for judicial review of a refusal to stay proceedings on the basis of an abuse of process will be very exceptional.  Those faced with applications in such circumstances will wish to have regard to the remarks of Brookes LJ in R v Liverpool City Justices and The Crown Prosecution Services ex parte Price[85].  They are remarks that we would respectfully and especially endorse:

“	… it still does not seem to be sufficiently well known that is only in a very exceptional case that this court will exercise its supervisory jurisdiction to intervene and quash the decision by justices in the exercise of their discretion not to stay criminal proceedings for abuse of process.  In R v Willesden Justices ex parte Clemmings (1998) 87 Crim App R 280, 286, Bingham, LJ said, after referring to the decision made by those justices:
	‘	I must, however, remind myself that the question is not whether I agree with the decision which they reached (although I do) but whether their decision is so plainly irrational and untenable that no reasonable bench of justices, properly directed, could have reached it.  That is, of course, a very high standard for the applicant to meet ….’
	This test was applied by this Court recently in R v Barry Magistrates’ Court ex parte Malpas [1998] COD 90, when I said at p. 91.”[86]

Stay applications

67.It is obvious to this Court that stay applications constitute a growth industry in this jurisdiction.  It is a habit that seems to be considered in some quarters as almost de rigeur; and tribunals at first instance should ever be aware of the exceptional circumstances in which applications for a stay may succeed.  

68.Courts elsewhere have also become increasingly troubled by the frequency of applications to stay proceedings on the grounds of abuse of process, and by assumptions made as to the extent of the discretion.  This is not to assert that meritorious applications are never made, nor to discourage counsel from their clear duty when their professional judgment, properly informed of the exceptional circumstances that will warrant a stay, dictates the making of an application.  Yet it is obvious at every level of our court system that unmeritorious applications are made far too frequently.  The effect is to prolong court proceedings, to cause them to be interrupted by collateral applications upon review, and unnecessarily to increase costs and the burden upon the administration of justice.  

69.It should by now be recognized as trite that the power to order a stay in is to be used only in the most exceptional circumstances: Lee Ming Tee[87]; and, in the context of suggested double jeopardy cases, Lord Devlin noted in DPP v Humphrys[88] that:

“	If there is the power which my noble and learned friends think there is to stop a prosecution on indictment in limine, it is in my view a power that should only be exercised in the most exceptional circumstances.”

70.In R v Childs[89], Lord Woolf, Lord Chief Justice, is reported to have said that:

“	… the court could not but be aware that up and down the country it was now the practice to raise arguments of abuse of process.  Those arguments distorted the trial process in cases where they were not appropriate.
	Practitioners should not advance arguments of abuse of process unless they were warranted.  If they were advanced when they were not warranted, the court should make it clear that that was inappropriate conduct and would take appropriate steps where, as sometimes happens, a huge amount of court time was wasted in consequence.
	The trial process was complicated enough.  It was not desirable to add to that complexity by putting forward unnecessary allegations.
	There were cases where allegations of abuse of process were properly warranted.  Where they were properly warranted, counsel for the defence must put them forward.  But they should not be put forward as mere embroidery of a case which could be advanced equally satisfactorily without.”

71.A similar sentiment has been expressed in Australia:

“	If permanent stay orders were to become commonplace, it would not be long before courts would forfeit public confidence.  The granting of orders for permanent stays would inspire cynicism, if not suspicion in the public mind.”
	Jago  v District Court (NSW)[90].

72.There is one further concern, which is the manner in which some have sought to utilize the decision in Dairy Farm Co. Ltd v Director of Food and Hygiene[91] so as to import the notion that a prosecution should be stayed because the case is weak or because someone else more culpable ought instead to have been prosecuted.  One might have thought that such a notion had long ago been put to rest.  We are not here addressing cases where a prosecution may be stayed because the prosecution has been instituted for an improper purpose, as in Williams v Spautz[92] or where conduct by a prosecutor constitutes an affront to the public conscience; but rather cases in which the court is asked to stay a prosecution on the ground that the evidence is insufficient to support a conviction.

73.The care which the courts must take not to overstep the boundary of their function was highlighted in Humphrys, first by Viscount Dilhorne:

“

A judge … should not have or appear to have any responsibility for the institution of a prosecution.  The functions of prosecutors and of judges must not be blurred.  If a judge has power to decline to hear a case because he does not think it should be brought, then it may be thought that the cases he allows to proceed are cases brought with his consent or approval.”[93]

and by Lord Salmon who said:

“	I respectfully agree … that a judge has not and should not appear to have any responsibility for the institution of prosecutions; nor has he any power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought.”[94]

74.So, too, in Environment Agency v Stanford[95], the Divisional Court of the Queen’s Bench Division said that:

“

It should also be noted that the jurisdiction to stay a case, as has been repeatedly emphasised, must be exercised with extreme caution.  Time and again, parties relying on the case of Bennett, [would] invite the lower courts to exercise an ill-defined discretion to stay a case by assessing whether a prosecution was well advised.  It was necessary to stress that this was not an issue for the court; the question of whether or not to prosecute was for the prosecution.  Most of the points relied upon in support of an argument of abuse of process went to mitigation.  The circumstances in which the court can intervene to stop a prosecution are very limited.  At present, many applications to stay were made in quite inappropriate circumstances.  A successful application to stay, which is then overturned on appeal, did no service to the defendant.”

75.As for the idea of granting a stay because of the weakness of a case, see R v Chairman of London County Sessions, Ex P. Downes[96] in which the Lord Chief Justice remarked that he knew of no power to quash an indictment on the ground that it was anticipated that the evidence would not support the charge.  Statute, in the form of s.16 of the Criminal Procedure Ordinance, Cap. 221, makes provision for discharge of an accused after committal but before trial where the evidence is insufficient to establish a prima facie case; but that is a specific vehicle quite different from the discretionary foundation for a stay of proceedings.

76.If Dairy Farm has been interpreted by some practitioners as having intended some indentation upon the principles emphasized by these various authorities, it should not be so read.  The court’s decision was directed at conduct of the prosecuting authority that was characterized as deceptive, so much so that to allow the case to continue would, the court found, amount to an affront to the public conscience and, despite a passing comment by the court that it could not see how ultimately the case could succeed, the court stated in terms that judicial review was not granted because of the weakness of that case.[97]  None of the authorities here cited was referred to by that court, no doubt because it did not intend to depart from the principles thereby established.

Mr Edmund Lawson, QC, Mr Philip Dykes, SC, Mr Keith J. Oderberg and Mr Simon K.C. Ng, instructed by M/s Lau, Chan & Ko for the Applicants/Appellants.

Mr Kevin Zervos, SC, DDPP(Ag) for the Respondent

[1] (2001) 4 HKCFAR 133.

[2] Notice of Application para. 1.

[3] Notice of Application para. 10.

[4] Notice of Application para 17.

[5] [1964] AC 1254 at 1360.

[6] Notice of Application para. 19.

[7] Notice of Application para 26.

[8] Judgment, para 66.

[9] FACV No. 10 of 2007, 30 November 2007, as yet unreported.

[10] Connelly at 1339.

[11] Corker & Young “Abuse of Process in Criminal Proceedings” 2^nd ed., para 7.20

[12] (1875) LR 10 QB 378.

[13] [1998] QB 356.

[14] [1998] 194 CLR 610.

[15] [1914] 2 KB 570.

[16] at 571.

[17] at 576.

[18] [1998] 194 CLR 610.

[19] at 611.

[20] at 616.

[21] at 616-618.

[22] at 360-361.

[23] (1993) 509 US 688.

[24] (1932) 284 US 299, at 304.

[25] (2001) 4 HKCFAR 133 at 148.

[26] at 149.

[27] [1992] QB 630 at 644.

[28] per Lord Pearce at 1362.

[29] per Black J, in Green v United States (1957) 355 U.S. 184 at 187-8.

[30] Green, above, at 188; and Choo ‘Abuse of Process and Judicial Stays of Criminal Proceedings’ (1993) p 17.

[31] Notice of Application para 26.

[32] Written submissions, paras 4 (b) and (c).

[33] [2000] 2 AC 483 at 505.

[34] per Lord Pearce in Connelly at 1361.

[35] [2005] EWCA Crim 33 (CA) , unreported, 14 January 2005.

[36] at [21].

[37] at 1362- 1364.

[38] L.R. 10. Q.B. 378.

[39] Connelly at 1362.

[40] at 1364.

[41] [1977] AC 1.

[42] at 497.

[43] [1998] Q.B 356.

[44] at 366.

[45] [1965] 1 All E R 653.

[46] at 656 C-F.

[47] [1965] N.I. 52.

[48] at 1361.

[49] at 62.

[50] transcript p. 324.

[51] Ruling paras 47-48.

[52] at 1359 – 1360.

[53] see Lord Devlin to this effect in Connelly at 1347.

[54] R v Jones [1918] 1 KB 416 at 417.

[55] [1971] AC 29 at 32.

[56] (1664) 1 Keble 677.

[57] (1775) 1 Leach 134.

[58] (1918) 13 Cr.App.R.265.

[59] [1984] 3 All E R 34.

[60] Chap. 12.

[61] [2006] EWCA Crim 524; [2006] Crim. L.R 1088.

[62] s. 9 Offences against the Person Act 1861.

[63] at 14.

[64] at [14].

[65] (1843) 3 Hare 100.

[66] [1996] 1 Cr. App. R. 94.

[67] at 101 A.

[68] testimony 25 July 2005.

[69] Statement para 4.

[70] Para 5(5) Statement.

[71] Appeal bundle A p 126

[72] appeal bundle A p. 127.

[73] [2006] EWHC 744(Admin).

[74] at para [28].

[75] Yeung Chun Pong v Secretary for Justice [2005] 3 HKC 447. 

[76] Yeung Chun Pong & Ors v Secretary for Justice (No 2) [2006] 3 HKC 31.

[77] Yeung Chun Pong & Others v Secretary for Justice FACC 3 of 2006, 13 November 2006.

[78] [1983] 3 All E R 257, at 262.

[79] [1995] 2 HKLR 24 at 29, 34.

[80] [1999] 1 HKLRD 572, at 575.

[81] FACV No. 10 of 2007, 30 November 2007.

[82] [2000] 2 AC 326.

[83] at 370.

[84] at 370-371.

[85] (1998) 162 JP 766.

[86] at 70-71.

[87] (2001) 4 HKCFAR 134.

[88] [1977] AC 1 at 26.

[89] Times Law Report, 30 November 2002.

[90] (1989) 168 CLR 23, per Gaudron J at 76.

[91] [2005] 3 HKC 1.

[92] (1992) 174 CLR 509.

[93] at 26.

[94] at 46.

[95] [1998] COD 373.

[96] (1953) 37 Cr App R 148 at 152.

[97] at 13.