HKSAR v. Chan Chun Chuen

ESCC 2233/2011

IN THE EASTERN MAGISTRATES COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 2233 OF 2011

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Coram: Acting Principal Magistrate David J Dufton

Date of hearing: 14 & 17 May 2012

Date of Ruling: 21 May 2012

RULING

1.The defendant Mr CHAN Chun-chuen (“Mr Chan”) appears before the court on two charges, one of forgery, contrary to section 71 of the Crimes Ordinance, Chapter 200 (charge 1) and one of using a false instrument contrary to section 73 of the Crimes Ordinance (charge 2).

Background

2.In summary the charges arise from events following the death of Mrs Nina Wang on the 3rd April 2007.  By a will dated the 28th July 2002 Mrs Wang had bequeathed her estate to the Chinachem Charitable Foundation Ltd.  After the death of Mrs Wang, through his legal representatives Mr Chan said he was in possession of a will dated the 16th October 2006, in which Mr Chan is the sole beneficiary of the estate of Mrs Wang.

3.The Chinachem Charitable Foundation Ltd commenced probate proceedings in relation to the validity of the two wills.  After a long trial Mr Justice Lam, in a judgment delivered on the 2nd February 2010, found the 2006 will to be a forgery.  Mr Chan was arrested the following day.          Mr Chan’s appeal to the Court of Appeal was dismissed and leave to appeal to the Court of Final Appeal was also dismissed.

Chronology

4.On the 26th May 2011Mr Chan was charged with forging the 2006 will and appeared in court the same day.  The prosecution duly elected for the proceedings to be tried in the High Court and a return day was fixed for the 8th July 2011.  On the 25th November 2011, after a number of adjournments to consider the committal papers, Mr Chan elected for a preliminary inquiry. 

5.The preliminary inquiry was set down for 6 weeks commencing on the 14th May.  On the 26th March 2012 the defence gave notification that at the preliminary inquiry they will be applying for a stay of proceedings.  I gave directions in accordance with Practice Direction 9.7 as to the filing of papers.  Skeleton submissions were duly filed in court. 

6.On Monday last week, the first day of the preliminary enquiry, the prosecution and defence agreed to proceed by what was called a “single proceeding” dealing with both the stay application and the preliminary inquiry at the same time.  Accepting a magistrate hearing a preliminary inquiry has the jurisdiction to stay proceedings I was nevertheless concerned whether this application should properly be heard by the trial judge in the event Mr Chan is committed for trial. 

7.Whilst there is some reference to this aspect in the prosecution skeleton submission in reply to the defence application for stay of proceedings (see paragraphs 17 & 18), this is absent in the defence skeleton submission, save for the reference to the court having jurisdiction to order a stay (see paragraph 4).

8.I was also concerned about whether if I heard the application I had jurisdiction to exclude evidence, this being one of the remedies sought by the defence (see paragraph 42 of the defence skeleton submission).           I therefore invited the parties, before proceeding with the preliminary inquiry and stay application, to address me on these issues first and referred the parties to various authorities they may wish to consider in preparing their submissions.

9.At the request of both parties the hearing was adjourned for the filing of written submissions on Wednesday and oral submissions on Thursday of last week.  I received the written submissions from both parties on the Wednesday and heard full oral submissions on the Thursday.   I adjourned my ruling until today. 

10.Before giving my ruling I wish to mention one matter that arose towards the end of submissions last Thursday and this is the question of whether the court should first hear any objections as to admissibility of evidence as provided by section 81A of the Magistrates Ordinance, Chapter 227 (“section 81A”), so that the court was aware of the extent of the admissible evidence, before ruling on whether or not to hear a stay application. 

11.When reading the defence skeleton argument for a stay of proceedings I was under the impression that the defence as part of the remedies sought were asking that I consider excluding otherwise admissible evidence (see paragraph 43).  This was one of the reasons why I asked the parties to address me on whether, as an examining magistrate, I have that discretion.  

12.The written submissions on jurisdiction and oral submissions of  Mr Hoo SC, for the defence, make clear that the defence are in fact objecting to certain aspects of the evidence as being inadmissible and further asking that evidence also be excluded by reason of the courts inherent discretion to exclude evidence on the grounds of unfairness, either on the stay application or under section 81A.

13.This has, as expressed at the time, given me some concern, for if evidence is inadmissible then there is, in my view, no need to consider this evidence, even on a stay application.  Mr Hoo asks that I determine whether or not to hear the defence application for a stay first and if I decide to hear the application then to consider all matters of admissibility during the hearing of that application. After careful consideration I am satisfied that I should first give my ruling on whether to exercise my inherent jurisdiction to hear the stay application.   

Ruling

14.This being a preliminary inquiry there is no duty on the court to give reasons (see CHAN Tit-shau v Secretary for Justice [2004]             1 HKLRD 801). However Rogers VP giving the judgment of the Court of Appeal in The Dairy Farm Company Limited  v Director of Food and Environmental Hygiene CACV283/2004 said that it is incumbent on the magistrate to give, at the least, some outlined reasons for the refusal of the stay, which reasons need not be extensive.  I am satisfied in the circumstances of the application made and in the interests of justice that I should give some reasons for my ruling.   These are those reasons.

15.I have carefully considered the written submissions of both the prosecution and defence in respect to both the issue of jurisdiction and the stay application itself together with the detailed oral submissions of both Mr Hoo and Mr Perry QC, for the prosecution. 

16.Both parties place reliance on judgments from the United Kingdom.  A word of caution must first be entered before placing any reliance on cases from the United Kingdom where the statutory provisions concerning committal proceedings are worded differently to that in Hong Kong.   However having said that whilst the statutory provisions are not identical, clearly the role of the examining magistrate is the same, namely to decide whether there is a case to go for trial by jury, whether this be described in terms of section 85 of the Magistrates Ordinance or section 6 of the Magistrates’ Courts Act 1980.

17.Caution is also to be entered by the fact that many of the cases refer to the provisions of the Police and Criminal Evidence Act 1984 (“PACE’), of which there is no equivalent in Hong Kong.  Section 78 of PACE gives a discretion to the court to exclude evidence which would otherwise be admissible.  In R v King’s Lynn Magistrates’ Court, ex parte Holland [1993] 2 All ER 377 the court held this discretion may be exercised by examining magistrates. Subsequent legislation excluded the application of section 78 to committal proceedings (seeR v Governor of Brixton Prison, ex parte Levin [1997] AC 741 at page 747H).

18.In my view, save for general principles, limited assistance only can be derived from the cases such as King’s Lynn Magistrates’ Court, ex parte Holland and other cases cited by both parties which concern PACE.    

Jurisdiction to order a stay

19.In summary the defence apply for a stay of proceedings on the basis that there has been deliberate spoliation of the primary evidence, namely the alleged forged will together with an unsigned draft of the forged will and an envelope containing the two documents,what Mr Hoo, in oral submission, has described as destruction of evidence.  I do not propose to set out the details of the application, which are extensively set out in the written submissions and referred to in the oral submission of Mr Hoo, save to say I fully understand the basis of which the defence make the application for a stay of proceedings.

20.There can be no doubt that an examining magistrate in committal proceedings has jurisdiction to order a stay of proceedings both in Hong Kong and the United Kingdom (see for example YEUNG Chun-pong v Secretary for Justice (2006) 9 HKCFAR 836 and R (Salubi and another) v Bow Street Magistrates’ Court [2002] 2 Cr App R 40).   

21.Both in Hong Kong and the United Kingdom that jurisdiction is said to be very limited.  The question then arises in what circumstances an examining magistrate may exercise this jurisdiction, and whether he should exercise this jurisdiction, or whether it is preferable to leave the determination to the trial judge.

22.To put this in context a brief summary of the relevant provisions relating to committal hearings in Hong Kong is necessary so as to understand the role of the examining magistrate.  Part III of the Magistrates Ordinance deals with committal proceedings for indictable offences.  Section 80A as read with section 80B provides that on setting down a return day the prosecution are to serve on the accused, not less than 7 clear days before the return day, all committal papers. 

23.Section 80C sets out the procedure to be followed on the return day.  Where the accused elects not to have the charges heard at a preliminary inquiry, he will be committed without such an inquiry.  If the accused elects to have the charges against him heard at a preliminary inquiry, that preliminary inquiry will be held in accordance with sections 81-85 of the Magistrates Ordinance. 

24.Section 81 makes provision for the taking of evidence for and on behalf of the prosecutor, with liberty to the accused or his counsel to cross-examine witnesses produced against him, and for the recording of evidence.  Section 81A deals with the admission of statements and exhibits and any objections to the admissibility of such statements and exhibits.  Sections 82 and 83 deal with right of the accused to give evidence and to call witnesses.  Section 85 provides that if the examining magistrate, having heard all the evidence, is of opinion such evidence is sufficient to put the accused upon his trial for an indictable offence, or if the evidence given raises a strong or probable presumption of the guilt of the accused, then the magistrate shall order that the accused stand committed for trial at the Court of First Instance.  If the examining magistrate is of opinion that there is not sufficient evidence to put the accused upon his trial for any indictable offence, he shall forthwith order the accused to be discharged.  

25.As to the power of an examining magistrate to hear an application for abuse of process Sir Anthony Mason NPJin YEUNG Chun-pong giving the judgment of the court said this:

40. The law has now developed to the point that it should be acknowledged in Hong Kong that examining magistrates possess implied power to stay proceedings to prevent an abuse of their own process, limited though the exercise of the power may be.  This implied power is an instance of the general proposition that every court has implied power to protect the integrity of its own process.  Part III of the Magistrates Ordinance is not inconsistent with this implication, though its provisions, notably s.85, will impose constraints on what can be done in the exercise of the implied power in relation to committal proceedings as distinct from a summary trial.

41.  What can be done in the exercise of the power is necessarily constrained not only by the statutory provisions but also by the limits of the power itself.  It is a power to prevent abuse of the process of the Magistrates’ Court and, in this case, of committal proceedings in that court. The power extends to abuses of process that are abuses of the process of the trial court, in so far as such abuses constitute abuses of the process of the Magistrates’ Court in committal proceedings in that court.  But the power, when exercised, is necessarily limited to the protection of the integrity of the Magistrates’ Court’s process, resulting in an order staying proceedings in that court only.  In the case of committal proceedings, the order, if made, would stay those proceedings (my emphasis).

26.The limitations of power of an examining magistrate are also referred to in other cases, for example R v Governor of Pentonville Prison, ex parte Osman (No 1) [1989] 3 All ER 701 at 721F,where the court stated the magistrate’s duty was to “weigh up” the evidence, but not his duty to “weigh” the evidence. I note this was an extradition case. I am however satisfied the principles in extradition cases equally apply to committal proceedings.  Extradition proceedings in the United Kingdom are to be conducted as nearly as if they were committal proceedings with the test to be applied being whether there is such evidence as would justify the committal for trial.  This is the same in Hong Kong  (see section 10 of the Fugitive Offenders Ordinance, Chapter 503). 

27.In CHAN Tit-shau v Secretary for Justice the court said that the role of the magistrate is a limited one, his duty simply being to decide whether the evidence before him is sufficient to amount to a prima facie case against the accused and in so doing does not make any final determination of fact or law. Further that the preliminary inquiry and the magistrate’s decision are merely procedural steps in the criminal process.

Submissions

28.Mr Hoo submits that as soon as proceedings have commenced a defendant is entitled to immediately make a stay application where he can show he has been prejudiced in the conduct and preparation of his defence as a result of the conduct of the prosecution.   By reason of what the defence contend is the destruction of the subject matter of the charges Mr Chan faces, namely the alleged forged will together with the draft forged will and the envelope, Mr Hoo submitsMr Chan has been prevented from having a fair trial because he has been robbed of the right to make proper preparation of his defence.  This application Mr Hoo submits should be heard now and not left to the trial judge.

29.In support of his submission Mr Hoo relies on the decision in        R v Derby Crown Court, ex parte Brooks (1984) 80 Cr App R 164 that such an application can be made where there is shown to be prejudice in the conduct and preparation of the defence.  That the application can be made immediately is supported by the decision in R v Telford Justices, ex parte Badhan [1991] 2 All ER 854. 

30.Mr Perry on the other hand submits the defence application for stay does not concern the integrity of the Magistrates’ Court’s process and therefore says the submission of Mr Hoo misses the point, the focus of the application being directed at the wrong target, namely the fairness of the trial and not the fairness of the decision to commit. 

31.In support Mr Perry relies on the judgment of Lord Hoffmann in   R v Governor of Brixton Prison, ex parte Levin, which was an extradition case and concerned PACE, at a time when section 78 still applied to committal proceedings.  In referring to the discretion to exclude under section 78 Lord Hoffmann at page 748A-C said: “…it must be borne in mind that when the section is being applied to committal or extradition proceedings, the question is whether the admission of the evidence would have such an adverse effect on the fairness of those proceedings that the court ought not to admit it.  This is not at all the same thing as the question whether the admission of the evidence at the trial would have an adverse effect on the fairness of the trial.  On the contrary, the magistrate should ordinarily assume that the powers available to the judge at the trial will ensure that the proceedings are fair.  The question is, therefore, whether the admission of the evidence would have an adverse effect on the fairness of the decision to commit or extradite the accused for trial, even if the trial is a fair one.  I think the circumstances would have to be very unusual before magistrates could properly come to such a decision...”

32.Lord Hoffman went on to say he is sure Beldam L.J. was right when he said inKing’s Lynn Magistrates’ Court, ex parte Holland that: “Examining justices could exclude the evidence from their consideration only if satisfied that its admission at the trial would be so obviously unfair to the proceedings that no judge properly directing himself could admit it.  I have no doubt that even in such a case it would generally be far better to leave the decision to the trial judge who will, as I have said, be in a better position to assess the effect on the fairness of the proceedings and have had a greater experience of deciding such questions.”

33.This Mr Perry submits is precisely the point made by the Court of Final Appeal in YEUNG Chun-pong, when at paragraph 41 of the judgment Sir Anthony Mason NPJsays this “is a power to prevent abuse of the process of the Magistrates’ Court and, in this case, of committal proceedings in that court.  The power extends to abuses of process that are abuses of the process of the trial court, in so far as such abuses constitute abuses of the process of the Magistrates’ Court in committal proceedings in that court.”  Further at paragraph 45 it is said the preferable approach is to leave such issue to the trial judge to determine.

34.Mr Hoo in reply submits that Mr Perry, in saying that there is no complaint made that the committal is unfair, is the one who has missed the point.  Mr Hoo emphasises the fundamental principle of the right to a fair trial and says by reason of the prosecution handling of the evidence prior to charge this has resulted in prejudice to the defendant such that he cannot make out his defence.  Mr Hoo submits that this amounts to an abuse of process because Mr Chan can no longer have a fair trial and that this court should hear and determine the application now and not leave the matter to the trial court.

Consideration of submissions

35.Derby Crown Court, ex parte Brooksand Telford Justices, ex parte Badhan were both concerned with delay, however I accept, as submitted by Mr Hoo, that the categories of abuse are not closed. For example see the judgment of Lord Griffiths in R v Horseferry Road Magistrates’ Court, ex parte Bennett [1994] 1 AC 42 and the decision in R v Belmarsh Magistrates’ Court, ex parte Watts [1999] 2 Cr App R 188, although as noted by the Court of Final Appeal in YEUNG Chun-pong the extent of this jurisdiction as stated inBelmarsh was doubted in R v Bow Street Magistrates’ Court, ex parte Finch [1999] EWHC Admin 527. Whilst these cases are highly persuasive in considering the principles to be applied in applications for stay of proceedings on the grounds of abuse of process, they must all be read in light of the decision of the Court of Final Appeal in YEUNG Chun-pong, which considered and cited all these cases in the judgment.   

36.Whilst I accept the grounds of abuse are not closed, the examples as seen in the case law relating to committal proceedings, such as unconscionable delay (as in Telford Justices, ex parte Badhan);  an accused being given an assurance he would not be prosecuted  (as in R v Croydon Justices, ex parte Dean[1993] QB 769) or unfair manipulation of court procedures (as referred to in both Horseferry Road Magistrates’ Court, ex parte Bennett and Derby Crown Court, ex parte Brooks) are far removed from the basis of the defence application, which in my view is primarily concerned with unfairness in the use of the primary evidence at trial.

37.The Court of Final Appeal in YEUNG Chun-pong makes clear not all applications of abuse are to be heard by an examining magistrate, only those relating to the protection of the integrity of the Magistrates’ Court’s process and these are very limited (see paragraph 41 of the judgment recited earlier).

38.In my view unfairness in the use of evidence, subject to objection as to admissibility being taken pursuant to section 81A, are best left for the trial judge to determine,with all the powers a trial judge has to remedy any matters shown to amount to unfairness.  This is therefore not an appropriate application of abuse of process for an examining magistrate to hear.

39.Even if I am wrong in this regard and the application is one an examining magistrate may hear, I am satisfied nevertheless that I should decline to hear the application.  The Court of Final Appeal were of the view the preferable approach was to leave the determination of such issues to the trial judge (see paragraph 45 of the judgment).  Whilst this was said in the context of autrefois pleas, I am satisfied the principles equally apply here.

40.This as seen was also the view of the court in King’s Lynn Magistrates’ Court, ex parte Holland.  Similarly in R (Salubi and another) v Bow Street Magistrates’ Court Auld LJ giving the judgment of the court said: “In most cases the Crown Court is likely to be better equipped to make such value judgments.”  Similarly in R (Ebrahim v Feltham Magistrates’ Court [2001] 1WLR 1293 the court said that the trial process itself is equipped to deal with the bulk of the complaints on which applications for a stay are founded.

41.In my view these decisions imply discretion in the examining magistrate whether or not to hear the application, even if the application is one which falls within his jurisdiction.  Again for the reason that in my view the application for stay is primarily based on the unfair use of evidence at trial, the preferable approach is to leave the matter to the trial judge to determine,with all the powers a trial judge has to remedy any matters shown to amount to unfairness.   I also consider these cases under the head of exclusion of evidence to which I now turn.

Exclusion of evidence

42.As part of the relief sought in the stay application the defence ask that I exclude the evidence relating to the alleged forged will together with the draft forged will and the envelope (see paragraphs 43-46 of the defendant’s skeleton argument on application to stay).  This as referred to earlier has been clarified to include objection to admissibility as well as exclusion of otherwise admissible evidence.

43.Clearly an examining magistrate has the power to rule evidence inadmissible as provided by section 81A(also see R v HO Siu-fei & others [1976] HKLR 190).  The more contentious area is whether the examining magistrate has the power to exclude otherwise admissible evidence.  If an examining magistrate does not have this powerto exclude evidence, this in itself would provide powerful reason not to hear the application.

44.Mr Hoo submits first that I have the power to exclude evidence in the stay application and secondly in considering any objection made to the admissibility of evidence under section 81A an examining magistrate has the power to exclude otherwise admissible evidence.  I will deal first with whether section 81A gives an examining magistrate the power to exclude otherwise admissible evidence.  The relevant part of section 81A reads as follows:

….at a preliminary inquiry-

(a) any witness statement handed into court under the provisions of section 80C(1); and

(b) any exhibit clearly identified in such statement, shall be deemed to have been admitted in evidence on behalf of the prosecution notwithstanding that the person who made the statement is not called as witness to give oral evidence at the hearing unless the accused objects to the admissibility of the statement or exhibit or any part of the statement or exhibit and the magistrate, after hearing any reply which the prosecutor may make allows the objection (my emphasis).

45.Most of the cases on exclusion of evidence are cases from the United Kingdom, where it is to be noted there is no equivalent provision to section 81A.  Heeding the caution entered earlier about reliance on United Kingdom cases, the legislative history of PACE referred to earlier is perhaps illuminating in that originally the courts held an examining magistrate had the power of discretion to exclude evidence given under section 78 of PACE.  Subsequently this power was removed by legislation, showing perhaps that in recognition of the limited role of the examining magistrate it was never intended they should have this discretion. 

46.The position in the United Kingdom therefore, appears to me, to have reverted to that prior to PACE. In R v Highbury Magistrates’ Court, Ex parte Boyce (1984) 79 Cr App R 132, a case concerning whether or not to permit dock identification evidence, the court held that it was for the court of trial and not the examining magistrate to decide whether, in their discretion, legally admissible evidence, ought not to be adduced and that examining magistrates do not have this discretion.     

47.I do not agree section 81A implies an examining magistrate has the discretion to exclude evidence ruled to be admissible. This would be to read in words that do not appear in the section.  If the magistrate was given that power by statute this would need to be clearly stated just as in PACE. The discretion to exclude arises from the courts inherent power to exclude evidence on the grounds of unfairness (see Secretary for Justice v LAM Tat-ming & another (2000) 3 HKCFAR 168).  

48.Although Mr Perry does not say an examining magistrate can never exclude otherwise admissible evidence, this he says must be only in the clearest case and in exceptional circumstances (see paragraph 3(iv) of the prosecution submission in relation to jurisdiction).  This concession however appears to be derived from the PACE cases such asKing’s Lynn Magistrates’ Court, ex parte Holland, when an examining magistrate in the United Kingdom still had that discretion.

49.Whilst King’s Lynn Magistrates’ Court, ex parte Holland is concerned with PACE the decision, is in my view, of some assistance in showing what the appeal courts in the United Kingdom say in regard to whether or not an examining magistrate should exercise that discretion. As noted earlier Beldam LJ giving the judgment of the court after deciding an examining magistrate may exclude evidence under section 78 of PACE went on to say: “I have no doubt that even in such a case it would generally be far better to leave the decision to the trial judge who will, as I have said, be in a better position to assess the effect on the fairness of the proceedings and have had a greater experience of deciding such questions.”  

50.Mr Hoo seeks to distinguish this part of the judgment of Beldam LJ on the basis that in the United Kingdom the majority of magistrates are lay justices, with some legally qualified magistrates called District Judges, formerly called stipendiary magistrates, whereas in Hong Kong all magistrates are stipendiary magistrates.  As Mr Hoo points out permanent magistrates in Hong Kong have powers of sentence in some cases of up to 7 years (see section 20 of the Firearms and Ammunitions Ordinance, Chapter 238) but in most cases sentencing powers are up to 2 years and   3 years for multiple offences (see sections 57 & 92 of the Magistrates Ordinance).

51.Mr Hoo submits by reason of the increased jurisdiction of a permanent magistrate in Hong Kong, an examining magistrate has the experience to decide whether or not to exclude evidence and need not leave this to the trial judge to determine.  I am not convinced that any interpretation of the United Kingdom legislation must take into account the fact that the majority of magistrates in the United Kingdom are lay magistrates with limited powers of sentencing compared to permanent magistrates in Hong Kong.  The fact remains that in the United Kingdom there are what were called stipendiary magistrates (now District Judges), who are qualified lawyers.  It is perhaps not without significance the decision subject of appeal inHighbury Magistrates’ Court, Ex parte Boyce, was a decision of a stipendiary magistrate, not lay justices.

52.Whilst the statutory provisionsin the United Kingdom are worded differently to that in Hong Kong, I nevertheless find the decision in Highbury Magistrates’ Court, Ex parte Boyce highly persuasive.  This was not however a case concerning a stay of proceedings, to which I will return shortly.

53.I am satisfied that as an examining magistrate I do not have the power to exclude otherwise admissible evidence during a preliminary inquiry, which discretion should be left solely to the trial judge to exercise.  This, in my view, is entirely consistent with the role of the examining magistrate under section 85 to determine whether the evidence is sufficient to put the accused upon his trial for an indictable offence, or if the evidence given raises a strong or probable presumption of the guilt of the accused on admissible evidence, whether that evidence be ruled admissible or deemed admissible by section 81A. 

54.I am also satisfied this is entirely consistent with what was said by Court of Final Appeal in Yeung Chun-pong.  Further I am satisfied there is nothing inconsistent with the Court of Appeal decision in HO Siu-fei.Nothing was said about the inherent power to exclude evidence on the grounds of unfairness. 

55.Turning to whether an examining magistrate has the power to exclude evidence on hearing a stay application I can see the force in the argument that if an examining magistrate was to hear a stay application he should then have all the powers necessary to properly consider the application, including discretion to exclude evidence on the grounds of unfairness.

56.If an examining magistrate has the power on the hearing of a stay application to exclude otherwise admissible evidence and I thought the present application may properly be heard by an examining magistrate, which I do not, in deciding whether to actually hear the application I would again be mindful that the Court of Final Appeal said the preferable approach was to leave the determination of such issues to the trial judge, which approach as noted earlier is the same in the United Kingdom                 (see King’s Lynn Magistrates’ Court, ex parte Holland and R (Salubi and another) v Bow Street Magistrates’ Court).   

57.Further as was said by Ribeiro PJ in HKSAR v LEE Ming-tee (2001) 4 HKCFAR 133 at 151H:

“….in cases where the ground on which a stay is sought concerns alleged unfairness in the use of particular classes or items of evidence, the courts, for procedural reasons, are extremely reluctant to determine the evidential questions on a stay application. This is because the fairness of using the evidence may be incapable of evaluation prior to the trial itself. The impact of such evidence on the fairness of the trial may need to be considered in the context of the evidence as a whole so that the question may best be dealt with as a question of admissibility to be determined by the trial judge and possibly made subject to his residual discretion to exclude the same.”

58.If the courts are extremely reluctant to determine the evidential questions on a stay application, all the more reason why these should be dealt with by the trial judge and not by examining magistrates, whose role is much more limited and who do not have all the powers of the trial judge, such as directions to the jury.  In Jago v District Court of New South Wales (1989) 168 CLR 23Brennan J emphasised that when an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness is not discharged by refusing to exercise the jurisdiction to hear and determine the issues but by controlling the procedures of the trial especially by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer. Later in the same judgment Brennan J went onto say that the flexible use of the power to control procedure and by the giving of forthright directions to a jury, a judge can eliminate or virtually eliminate unfairness.    

59.In the circumstances even if on a stay application I do have the power to exercise a discretion to exclude otherwise admissible evidence I would nevertheless still decline to hear the application.

Conclusion

60.Considering the limited scope of the role of an examining magistrate I am satisfied the application for stay, being largely, if not wholly, based on alleged unfairness in the use of evidence, does not fall within the categories of exceptional or rare cases that are to be determined by examining magistrates.

61.Having carefully considered all the circumstances and for the reasons given I therefore decline to hear the application for stay.

62.In reaching this decision I have also borne in mind that even if I was to hear the application my ruling would not finally determine the matter.  If the decision be adverse to Mr Chan, he would still be at liberty to make the same application before the trial judge in the event I committed him for trial.  On the other hand if the decision is favourable to Mr Chan, the prosecution could seek judicial review of the decision or take steps under section 24A(1)(b) of the Criminal Procedure Ordinance, Chapter 221, to have a voluntary bill. 

63.The Court of Final Appeal said in Yeung Chun-pong that such consequences would inevitably lead to a serious fragmentation of the criminal trial process and that the preferable approach is to leave the determination of such issues to be dealt with by the trial court (see paragraphs 43-45 of the judgment).    

Mr David Perry QC; Ms Anna Lai SADPP and Eric Tsoi, for HKSAR

Mr Alan Hoo SC; Mr Kevin Chan; Ms Catrina Lam and Ms Fiona Nam instructed by Messrs Li & Lai for the defendant.