HKSAR v. Shum Chiu

CACC 424/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 424 OF 2008

(ON APPEAL FROM DCCC NO. 687 OF 2004 (PART A))

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BETWEEN

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Before: Hon Stock VP, Hartmann JA and Wright J in Court

Date of Hearing: 10 December 2010

Date of Judgment: 10 December 2010

Date of Handing down Reasons for Judgment: 28 February 2011

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Hon Hartmann JA:

Introduction

1.On 22 June 2009, in the District Court before Judge Andrew Chan, the appellant was convicted on his own plea of one offence of conspiracy to offer an advantage to public servants and one offence of conspiracy to falsify accounts.  He was sentenced to 32 months’ imprisonment.

2.Some seven months later, in February 2010, the appellant sought leave to appeal his conviction and sentence out of time.

3.On 10 December 2010 we granted leave to appeal out of time against conviction, treating the hearing of the application for leave as the appeal itself and setting aside both conviction and sentence.  We further ordered a permanent stay of the proceedings.  We did so on the basis that the criminal proceedings resulting in the appellant’s conviction had constituted an abuse of process of such gravity that the proceedings should not have been permitted to continue to the stage where the appellant entered his plea.  We said we would give our reasons later and do so now.

The background

4.It was in June 2005 that the appellant and certain business colleagues, among them two men to whom we shall refer as D2 and D3, first appeared for trial in the District Court before Deputy Judge Livesey.  On that occasion, all the defendants, including the appellant, pleaded not guilty to the charges on the indictment. 

5.At the commencement of that trial, application was made for a permanent stay of the proceedings.  This was done on the basis that the agency tasked with the criminal investigation leading to the court proceedings, the Independent Commission Against Corruption (‘the ICAC’), through an undercover agent, had covertly recorded a meeting between D3 and his lawyers in a restaurant and after that meeting, even though the officers of the ICAC had reason to believe that the meeting had not been used to promote any criminal purpose, nevertheless had listened to the recordings.  It was argued that there should be a permanent stay of the proceedings for two reasons:

1. that there had been a deliberate infringement of legal professional privilege which constituted so grave an affront to the court’s sense of justice and propriety that the proceedings as a whole should be stayed and

2. while the legal professional privilege of D3 only had been infringed, the remaining defendants (including the appellant and D2), by reason of that infringement, had been denied a fair trial.  This was because, by reason of the privilege that reposed in D3 and which D3 did not waive, the other defendants were denied access to material to which the ICAC had become privy and which may have been of use to it in furthering the prosecution.

6.Having heard the application, the judge ruled that there had been an abuse of process and ordered a permanent stay.

7.That ruling, however, was successfully challenged by way of judicial review.  The successful challenge was founded on a matter of procedural fairness, namely, that the trial judge had erred in not giving sufficient opportunity to the prosecution to adduce evidence in an attempt to justify the covert monitoring of the meeting between D3 and his lawyers on the basis that officers of the ICAC had good grounds to believe that the meeting was to be used to pervert the course of justice.  The decision of the Court of First Instance to grant judicial review was upheld on appeal.  Thereafter an application to take the matter to the Court of Final Appeal was dismissed.

8.So it was that in early 2008 the matter came back before the District Court for retrial before H.H. Judge Chan.

9.At the commencement of that second trial, before the appellant and his co-defendants entered a plea, the application for a permanent stay of proceedings was renewed.  In June 2008, after a hearing lasting several months, the judge dismissed the application, saying that he would give his reasons at the end of trial.

10.However, before the trial itself was able to commence, the appellant, a man in his early 70s, was forced to undergo extensive surgery for prostate cancer.  In the result, on 18 August 2008, with the prognosis for a full recovery remaining uncertain, the judge ordered that the trial should continue without the appellant and his trial was ordered severed.

11.The application for a permanent stay having been dismissed, the appellant’s co-defendants formally entered pleas of not guilty to the charges.  In December 2008, at the conclusion of the trial, they were convicted.  D2 and D3 were both sentenced to five years’ imprisonment.

12.D2 and D3 made application to appeal their convictions.  Unsurprisingly, it was a principal ground of their applications that the trial judge had been in error in refusing a permanent stay of proceedings.

13.In light of this, in February 2009, the appellant applied to the judge to state a case concerning the correctness of his decision refusing the application for a permanent stay of proceedings.  The appellant did so on the basis that, if the judge followed this course, the appellant would be able to have the case stated listed at the same time as the appeals of D2 and D3, there being a common issue.  If that case stated was successful, it would avoid the appellant himself having to go to trial.  Although the judge accepted that he had jurisdiction to make such an order, he declined to do so.

14.The appellant sought leave to apply for judicial review of that decision but on 1 April 2009, his application for leave was refused.

15.As the appellant expressed it, he then found himself in an invidious position.  In an affirmation dated 3 February 2010 he said:

“The other defendants [D2 and D3] had received sentences of five years imprisonment. I could not cope at my age and in my health with the prospect of spending my declining years in prison for that length of time. Accordingly, I decided to plead to a reduced indictment in the hope of obtaining a reduced sentence.”

16.It was on this basis, he said, that on 22 June 2009 he pleaded guilty to the two offences stated at the beginning of this judgment.

17.Some seven months later, on 26 January 2010, the applications made by D2 and D3 for leave to appeal came before this Court.  At the end of the hearing, this Court granted leave to both applicants, allowing their appeals, setting aside their convictions and sentences and ordering a permanent stay of the proceedings against them.

18.In giving the reasons for judgment (HKSAR v Wong Hung Ki and Another [2010] 4 HKC 118), Stock VP said that, in the view of the Court, the judge, in coming to his determination that the application for a permanent stay should be dismissed, “had failed satisfactorily to address his fact-finding task” and that “his findings of fact and the consequential exercise of his discretion could, accordingly, not be supported.”  For this reason alone, he said, the ruling of the trial judge had to be set aside: see para. 82.

19.In looking to the facts determining the manner in which officers of the ICAC had infringed D3’s right to legal professional privilege, the Vice President went on to say the following (paras. 93,94 and 95):

“It would have been clear to the officers at the outset of the meeting [between D3 and his lawyers in the restaurant] that, contrary to such expectations as they say they harboured, lawyers were in attendance. No steps had been taken to cater for that situation. The lunch meeting was prolonged, yet recording continued. After the meeting a decision was taken – not in haste, not in an atmosphere of ‘constant changing situations’, but with the benefit of the passage of five days – to listen to the tape recording, in the presence of the prime prosecution witness, even though the ICAC had specifically asked that witness about the nature of the meeting and had been told by him that it had not concerned a plan to pervert the course of justice. The officers knew by then that D3 had been present and must have known, or had good grounds for believing, that he had received legal advice. They deliberately listened thereafter to this conversation even though they must have appreciated that there was a significant risk that it contained privileged communications. Despite that clear risk, no fresh authorisation was sought; and no consideration was given to seeking legal advice from the Department of Justice. That was the very least step to be taken. There was no operational imperative, no urgency, that dictated otherwise…

At the end of the day an 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 officers 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.

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 the proceedings.  In our judgment, the proceedings as a whole were affected, not merely as against D3, whose professional privilege had been infringed but also as against D2.  In the case of D2, we ordered a stay on the additional ground that he could not enjoy a fair trial.  This is because he was precluded from knowledge, in the hands of the investigating authorities, of what had transpired at the lunch meeting [between D3 and his lawyers] and whether and to what extent what had there happened led to material changes in the subsequent statements made by Tang [the undercover agent and the prime prosecution witness].”

20.On 2 February 2010, a matter of days after this Court had given its judgment ordering a permanent stay of proceedings against D2 and D3, the appellant filed papers seeking leave to appeal out of time.

Extension of time in which to appeal

21.Before turning to the substantive issues, it is to be recorded that we exercised our discretion to grant the appellant leave to appeal out of time on the basis that we were satisfied that the grounds of appeal were of such merit that it was probable that the appeal would succeed: see Wu Chun Piu v R [1996] 1 WLR 1113 at 1118B. 

The basis of the appellant’s case

22.The basis upon which the appellant’s case was advanced may be stated in the following two propositions.

23.First, criminal proceedings that are rendered unlawful by a prior abuse of process and which, by reason of that abuse, should never have come before the court, cannot result in a verdict that, in terms of s.83(1) of the Criminal Procedure Ordinance, Cap. 21, is ‘safe’ or ‘satisfactory’.

24.Second, if those criminal proceedings should never have taken place and therefore should never have proceeded to the stage of taking a plea, it cannot matter whether a conviction was obtained in those proceedings by way of a verdict reached by the court after trial or by way of a guilty plea.  In such circumstances, it would be inconsistent with the due administration of justice to allow pleas of guilty to stand.

The basis of the respondent’s answer

25.As was readily conceded by Mr McCoy SC, counsel for the respondent, there could be no doubt that if the appellant had remained a party to the same trial proceedings as D2 and D3 and had persisted in his plea of not guilty, he would have been entitled to succeed on appeal in the same manner and to the same extent as D2.

26.The difficulties faced by the appellant were that he had not persisted in his plea of not guilty.  He had elected instead to go to trial in separate proceedings and then had made the decision to plead guilty.  He had come to that decision in full knowledge of all the relevant circumstances including the fact that there might be grounds, if the matter proceeded to the appellate courts, to prove abuse of process.  In terms of s.83(1) of the Criminal Procedure Ordinance the question still had to be asked: in respect of the appellant, on what basis was it to be said that a miscarriage of justice had actually occurred?

The Criminal Procedure Ordinance: this Court’s jurisdiction

27.S.82(1) of the Criminal Procedure Ordinance, Cap. 221, directs that:

“A person convicted of an offence on indictment may appeal to the Court of Appeal against his conviction.”

28.On the plain reading of those words, the only qualifying provision is a conviction on indictment.  It matters not whether the conviction was obtained by way of verdict after trial or by way of a plea.  As was said by this Court in HKSAR v Yip Kai Foon [1999] 1 HKLRD 277, at 282:

“We accept that the applicant is not debarred from appealing by reason of his [guilty] plea. If, however, an applicant is to have any chance of success in his appeal, he must, as was done in R v Lee (Bruce) [1984] 1 WLR 578, establish that there is some overriding factor which makes the conviction founded on the unequivocal plea unsafe and unsatisfactory.” [my emphasis]

29.On the authority of Yip Kai Foon, for the appellant to succeed on appeal it was therefore necessary for him to establish some ‘overriding factor’ which rendered his conviction unsafe and unsatisfactory.

30.The ‘overriding factor’ relied on by the appellant was what this Court found to be the deliberate infringement of legal professional privilege by officers of the ICAC, an abuse of the criminal process that vitiated the lawfulness of all consequential criminal proceedings. 

31.S.83(1) of the Criminal Procedure Ordinance sets out the grounds upon which an appeal under s.82 may be allowed.  It reads:

“Except as provided by this Ordinance, the Court of Appeal shall allow an appeal against conviction if it thinks –

a) that the conviction should be set aside on the grounds that under all the circumstances of the case it is unsafe or unsatisfactory; or

b) that the judgment of the court of trial should be set aside on the ground of a wrong decision on any question of law; or

c) that there was a material irregularity in the course of the trial,

and in any other case shall dismiss the appeal:

Provided that the Court of Appeal may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no miscarriage of justice has actually occurred.”

32.The appellant brought his appeal under both s.83(1)(a) and (b).  He did so under s.83(1)(b) on the basis that the judgment of the court of trial in convicting the appellant should be set aside because of a wrong decision on a question of law, namely, the judge’s prior rejection of the application for a permanent stay of proceedings.  Mr McCoy took issue with this.  It was his contention that s.83(1)(b) was not available to the appellant who had chosen to have his proceedings severed from the original proceedings in which the application for a permanent stay of proceedings had been advanced and dismissed.  In the circumstances, said Mr McCoy, the appellant, having determined to plead guilty in the severed and therefore independent proceedings, was convicted by a “court of trial” that had no specific question of law before it.  The fact that the sentencing court assumed jurisdiction to find the appellant guilty of the charges on the indictment to which he pleaded guilty and to impose sentence was not a relevant “decision” on a question of law for the purposes of s.83(1)(b). 

33.Mr McCoy conceded, however, that s.83(1)(a) – which permits this Court to set aside a conviction on the grounds that, under all the circumstances of the case, it is unsafe or unsatisfactory – was potentially available to the appellant.  He accepted that s.83(1)(a) is designed to be broadly facilitative, enabling this Court to take into account all relevant matters in seeking to ensure the ultimate safety of a conviction.  In that respect, he said, s.83(1)(a) subsumed sub-sections (b) and (c).

34.There is no need for us to decide Mr McCoy’s submission that s.83(1)(b) was not open to the appellant because on all the authorities it is beyond argument that s.83(1)(a) was open to him.

The rationale for staying proceedings that constitute an abuse of process

35.In his speech in R v Horseferry Road Magistrates’ Court, ex parte Bennett [1994] 1 AC 42, at 76, Lord Lowry said:

“The court, in order to protect its own process from being degraded and misused, must have the power to stay proceedings which have come before it and have only been made possible by acts which offend the court’s conscience as being contrary to the rule of law. Those acts by providing a morally unacceptable foundation for the exercise of jurisdiction over the suspect taint the proposed trial and, if tolerated, will mean that the court process has been abused.”

36.Lord Lowry continued:

“It may be said that a guilty accused finding himself in the circumstances predicated is not deserving of much sympathy, but the principle involved goes beyond the scope of such a pragmatic observation and even beyond the rights of those victims who are or may be innocent. It affects the proper administration of justice according to the rule of law…”

37.That legal professional privilege is an underpinning principle of the rule of law in common law jurisdictions was succinctly stated by Lord Taylor CJ in R v Derby Magistrates’ Court, ex p B [1996] AC 487, 50:

“Legal professional privilege is ... much more than an ordinary rule of evidence, limited in its application to the facts of the particular case. It is a fundamental condition on which the administration of justice as a whole rests.”

38.It was on this basis that this Court in Wong Hung Ki concluded that there had been an abuse of process of such gravity that it threatened the rule of law in Hong Kong and that, in order to protect its own process from being degraded and misused, it must exercise the power to order a permanent stay of the proceedings tainted by that abuse.

39.The decision of this Court to order a permanent stay was made without reference to the safety or otherwise of the convictions of the appellants, that is, D2 and D3.  That is because, for the reasons which follow, even certainty of guilt cannot displace the essential feature of the kind of abuse that was identified.

Considering the authorities

40.R v Blackledge and Others [1996] 1 Cr App R 326, a judgment of the Court of Appeal of England and Wales, was given at a time when s.2(1) of the Criminal Appeal Act 1968 was worded in almost identical terms to our present legislation.  S.2(1)(a) of the Act provided that the Court of Appeal shall allow an appeal against conviction if the Court thinks that “the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory”. 

41.The judgment in Blackledge was further based on the earlier authority of Preston and Others (1992) 95 Cr App R 355 in which Woolf LJ, holding that an unequivocal plea of guilty is not necessarily a bar to an appeal against conviction, went on to qualify that by saying (page 381):

“In our judgment, before an appellant who has pleaded guilty can rely upon an erroneous ruling on a point of law or a material irregularity, he must show his plea ‘was founded’ upon the erroneous ruling of law or the material irregularity”.

42.In Blackledge, the Court of Appeal set aside convictions obtained by way of unequivocal pleas of guilty on the basis that there had been a material irregularity in the conduct of the trial, that material irregularity in effect being an abuse of process brought about by the refusal of the various branches of the Executive to produce witnesses or to disclose highly material documents which, if they had been made available, would have enabled the appellants to make properly informed decisions about their defence. 

43.Some brief consideration of the background is pertinent.  Lord Taylor CJ, giving the judgment of the court, said:

“Even without the documentation, the appellants could have run their defence and given evidence in support of it. It is stressed, however, that in addition to being deprived, so to speak, of ammunition, the appellants were put into a difficult dilemma. For the offences charged, they could have been sentenced to a substantial period of imprisonment. At the time of the trial, after the second Gulf War, they had an understandable fear as to what sentence a court might consider properly reflected public disapproval of assistance to Saddam Hussein. In those circumstances, the prospect of a muted presentation of the facts by the prosecution, followed by a suspended sentence, put pressure on the appellants to go quietly.”

44.Lord Taylor CJ concluded:

“We have considered the aggregate of all the unusual circumstances of this case – the material irregularity, the judge’s ruling based on an unawareness by him and by prosecuting counsel of the undisclosed documents, and finally the pressure added to those factors by the discussions leading to the changes of plea [made by the appellants after their application for a permanent stay of proceedings had been denied].

We consider the pleas of guilty were founded on the material irregularity and the judge’s ruling coupled with the pressure to which we have referred.  In the result, we cannot regard the convictions as safe and satisfactory.  Accordingly, the appeals must be allowed.” [our emphasis]

45.It will be seen that the circumstances of Blackledge were in many respects on all fours with the case of the appellant.

46.The appellant had originally joined himself to an application for a permanent stay of proceedings and had pursued that application over an extended period of time by way of two first instance hearings in the District Court, judicial review proceedings and an attempt to have a case stated presented to this Court so that he could effectively join himself in the (ultimately successful) application for leave to appeal made by D2 and D3.  It is not surprising perhaps, bearing in mind his frailty by way of illness, that when all these attempts failed, the prospect of a reduced sentence persuaded him to capitulate.

47.Plainly, the appellant’s change of plea was ‘founded upon’ the erroneous ruling of the trial judge in the original proceedings dismissing the application for a permanent stay.  Equally plainly, that erroneous ruling, being a ruling of mixed fact and law, constituted an irregularity in the proceedings.

48.On the basis of Blackledge alone, the appellant would have succeeded in having his conviction ruled unsafe or unsatisfactory.

49.Although there has been no change in Hong Kong, in England and Wales the Criminal Appeal Act was amended in 1995.  By that amendment, the test governing the grounds for allowing an appeal was changed.  The formula of whether a conviction was found to be unsafe or unsatisfactory was replaced by the simple test of whether the conviction was found to be “unsafe”.

50.This amendment, initially at least, appears to have led to a departure from the principles laid down in earlier jurisprudence, for example, in Horseferry Road Magistrates’ Court, ex parte Bennett and Blackledge.  In cases such as R v Chalkley [1998] 2 Cr App R 79 and R v Rajcoomar [1999] Crim. LR 728, the focus was now cast on the narrower issue of the “safety” of the conviction.

51.In Rajcoomar, the complaint was that the trial judge had wrongly held that there had been no abuse of process which, in the light of other rulings regarding the admissibility of evidence, left the defendant with no option but to plead guilty.  The Court of Appeal did not find it necessary to decide whether the judge’s ruling that there had been no abuse of process was right or wrong.  To cite from the commentary by Professor Sir John Smith, “it made no difference because the defendant had admitted his guilt and the conviction was therefore safe”.

52.However, in R v Mullen [2000] QB 520 a less narrow approach was adopted, one which looked to the proceedings as a whole.  In Mullen, the defendant had been convicted after trial.  There was no complaint as to the trial itself.  The complaint made to the Court of Appeal concerned the manner in which the defendant had been brought into the jurisdiction from overseas, it being argued that the process had been unlawful both domestically and internationally.  In allowing the appeal, Rose LJ said (page 534):

“Having regard to the fact that the defendant, as he now concedes, was properly convicted, this Court must approach the exercise of its discretion on a rather different basis from that which would have been appropriate if an application had been made to the trial judge. In particular, there is before this Court no question of consideration of the strength of the evidence of the defendant's guilt of the offence charged. However, as appears from the passage already cited from the speech of Lord Lowry in R v Horseferry Road Magistrates’ Court, ex parte Bennett, certainty of guilt cannot displace the essential feature of this kind of abuse of process, namely the degradation of the lawful administration of justice.”

53.Rose LJ was satisfied that the amendment to the Criminal Appeal Act was not intended to depart from the jurisprudence contained in R v Horseferry Road Magistrates’ Court, ex parte Bennett and similar cases.  At the end of his judgment, he summarised the views of the court in the following terms:

“… for a conviction to be safe, it must be lawful; and if it results from a trial which should never have taken place, it can hardly be regarded as safe. Indeed the Oxford English Dictionary gives the legal meaning of “unsafe” as “likely to constitute a miscarriage of justice”.”

54.In his commentary to Rajcoomar cited above, Sir John Smith supported the views of the court in Mullen:

“But if, as the court said in Mullen, “…for a conviction to be safe, it must be lawful; and, if it results from a trial which should never have taken place, it can hardly be regarded as safe”, what does it matter whether the conviction results from a plea of guilty or a verdict of guilty by the jury?  In both cases the defendant is in law guilty of the offence charged, but in neither case should the trial have taken place at all.  According to the reasoning in Mullen, it is safe in both, or it is safe in neither.”

55.Sir John Smith continued:

“It is submitted that there is no proper ground for these distinctions. In each case it is assumed that there is no doubt that the defendant committed the offence charged that there was a fundamental flaw in the procedure by which the conviction was achieved. There is no difference in principle. The conviction should be regarded as unsafe in [each case or in neither].”

56.In the later Court of Appeal judgment in R v Togher and Others [2001] 1 Cr App R 33, Lord Woolf CJ, giving the judgment of the court, said that the Human Rights Act 1998 emphasised the desirability of taking a broader rather than a narrower approach as to what constituted an unsafe conviction.  Accordingly, if a prosecution should have been stopped on the basis that it was an abuse of process but, despite that, a conviction followed, it was most unlikely that it would not be set aside.

57.The test applied by Lord Woolf CJ was not absolute.  This was because, as he said (para. 33) –

“… the circumstances where it can be said that the proceedings constitute an abuse of process are closely confined. The reason for this is that the majority of improprieties in connection with bringing proceedings can be satisfactorily dealt with by the court exercising its power of control over the proceedings. It has to be a situation where it would be inconsistent with the due administration of justice to allow the pleas of guilty to stand.” [my emphasis]

58.During the course of the hearing of the appellant’s application for leave to appeal, Mr Fitzgerald QC, for the appellant, placed considerable emphasis on a judgment of the Court of Appeal of England and Wales in the case of R v Hans-Constantin Paulssen (2003) EWCA Crim 3109 in which Waller LJ, giving the judgment of the court, said:

“If … proceedings are an abuse of process, in the limited sense explained in Togher, then a conviction which results from a trial which could not be fair or which was contrary to the public interest in the integrity of justice to pursue, is likely to be unsafe whether it results from a conviction by a jury or a plea of guilty.

If the only basis on which an applicant in the same situation as this applicant would be able to challenge the judge’s ruling on entrapment would be by fighting the case and being convicted by a jury, that would seem contrary to the public interest. Where the circumstances are as narrowly confined as the instant case i.e. whether there was entrapment or no, that entrapment can provide no defence if the matter went to trial, it must be in the interests of justice generally that a defendant can plead guilty and still retain the right to challenge the judge’s ruling.

That said, the Court of Appeal will only hold unsafe a conviction following a plea of guilty if, in the words of the Lord Chief Justice in Togher, it would be inconsistent with the due administration of justice to allow the plea to stand.”

59.Mullen, Togher and Paulssen would appear to reflect the law as it has remained unchanged in Hong Kong.

60.In Yip Kai Foon, this Court spoke of an applicant having the burden on him to establish that there is some “overriding factor” which makes a conviction founded on his unequivocal plea of guilty unsafe or unsatisfactory.

61.We do not see that the tests are different. An overriding factor, once demonstrated, must lead to the finding that it would be inconsistent with the due administration of justice to allow the plea of guilty to stand.

Conclusion

62.For the reasons given, we were satisfied that the two propositions advanced on behalf of the appellant and described earlier in paras. 23-24 were both made out.

63.This Court found there to be a grave abuse of process which vitiated the lawfulness of the criminal proceedings brought before it.  The proceedings as a whole were ordered to be permanently stayed.  On a consideration of the relevant authorities, it had to follow that any convictions obtained by reason of those proceedings were rendered unsafe or unsatisfactory.

64.On behalf of the respondent, it was submitted that this was of itself insufficient to quash the appellant's conviction.  In terms of s.83(1) of the Criminal Procedure Ordinance an actual miscarriage of justice still had to be demonstrated.

65.In criminal proceedings, there is a miscarriage of justice when an accused person has been deprived of the opportunity which was fairly open to him of being acquitted by reason of a failure to properly judge the facts and apply the relevant law.  If the judge in the second set of proceedings in the District Court had not fallen into error, both in his assessment of the evidence and in his application of the law to the evidence, he would have found there to have been an abuse of process vitiating the integrity of the proceedings before him and would have stayed those proceedings.  

66.If not for that error, the appellant would have benefited from an order that proceedings against him on the charges which he faced be stayed permanently.  Had they been stayed, his trial would not have been severed and he would not subsequently have been arraigned.

67.The appellant’s subsequent plea does not detract from this, especially when the circumstances in which it was entered, as summarised in para. 46 of this judgment, are given due weight.  In those circumstances, in our view, there would have been an actual miscarriage of justice if the appellant had not been able, by way of appeal to this Court, to obtain the order of a permanent stay already granted to D2 and D3.

Mr Edward Fitzgerald, QC, Ms Charlotte Draycott SC and Ms Maggie Wong, instructed by Messrs F. Zimmern & Co. for Applicant (D1)

Mr Gerard McCoy, SC, instructed by Department of Justice for the Respondent