The Queen v. Yeung Chi Chiu and Another

D.C. Case No. 367 of 1993

IN THE DISTRICT COURT OF HONG KONG

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The Queen

Against

Yeung Chi-chiu (D1)

Fu Kam-wing (D2)

Coram: Deputy Judge Li

Date: 4th September, 1994.

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REASONS FOR RULING

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1.  The defendant now stand jointly charged with 1 offence of accepting an advantage and 1 offence of conspiracy to pervert the course of justice, respectively contrary to section 4(2)(a) of the Prevention of Bribery Ordinance, Cap. 201 and common law. Mr. A.B. Mitchell-Heggs prosecutes on fiat. Mr. T.R.W. Jenkyn-Jones represents the first defendant (D1). Mr. J. Necholas acts for the second defendant (D2). Both defendants have pleaded not guilty to the charges. There was a third defendant (D3) but the prosecution has offered no evidence against him and so D3 is out of the picture.

2.  In order to forestall trial, counsel for D1 and D2 have made concerted efforts to apply for permanent stay of these proceedings.

3.  The circumstances of this case, as I understand it, are these. In January 1993 one WONG Wing-hung (“Wong”) was arrested by a team of police officers for a drug trafficking offence. D2 was in the team. D1 was a colleague of D2 but was not in the team. Wong was in due course charged and released on bail pending trial. Sometime in March 1993, Wong made a report to the ICAC as a result of which the ICAC arranged for certain conversations over the telephone and in person between Wong and the defendants recorded on tape. The court is informed by the prosecution that these taped conversations would tend to show that the defendants are guilty as charged. Wong is in the list of prosecution witnesses on the back of the indictment. However, Wong has since December 1993 absconded and a warrant for his arrest is still unexecuted. The prosecution says that it is able to prove its case by producing the record of the taped conversations without calling Wong and by relying on some scientific evidence about money passing from Wong to the defendants. The defence says that it would be an abuse of process for trial to proceed on this basis.

4.  According to the defence, the record of the taped conversations can only be secondary evidence. Wong as the procreator of the conversations must be available for questioning by the defence so that his credibility may be tested, the defence may have the opportunity of eliciting facts from him and the defence case such as an innocent explanation for what occurred between Wong and the defendants may be put to him. Without Wong as a witness, the defence case cannot even be mounted. Deprived the opportunity of questioning Wong, the defendants may be forced to go to the witness box. For these considerations, trial should not be allowed to proceed in the absence of Wong.

5.  Although the application is based on abuse of process, both the prosecution and the defence have sought to rely on a wide range of authorities which cover abuse of process in general, stay of proceedings on the specific ground of missing witness and breach of human rights. I shall consider each distinctive approach separately.

Abuse of Process in General

6.  The common law approach to abuse of process in general can be gleaned from The Queen v. LI Wing-tat [1991] 1 HKLR 741. There it was held that it is within the court’s discretion to stay or not to stay prosecution for reason of abuse of process, that the categories of such abuse are never closed, that the burden of proof rests upon the person asserting the abuse of process which is provable upon a balance of probabilities and, that prejudice to the accused need not be proved.

7.  Without intending to diminish its undoubted weight, I do not find this authority of assistance in the specific problem of missing witness that I am now faced with.

Injustice due to Missing Witness

8.  Reg. v. Cavanagh [1972] 1 W.L.R. is the modern beginning of a long line of authorities on whether to stay trial when a material witness or witnesses are not available.  There it was held that if it proves impossible to have the witnesses present and the absence of the witness is, on balance, to the advantage of the defendants, a trial court may in its discretion permit the trial to proceed provided that no injustice will be done thereby.

9.  In Attorney General v. Ma Chiu Keung [1988] 2 HKLR 64, our Court of Appeal was concerned with a case of an absent witness who was the victim of a robbery. It was held that what the trial judge should have there done was to hold a form of preliminary inquiry, consider the victim’s statement, the contents of a cautioned statement made by the accused which the prosecution wished to adduce and any other evidence relevant to the issue before coming to a decision on an application to stay.

10.  In The Queen v. Takeshi Machiya, Criminal Appeal No. 332 of 1989, our Court of Appeal again had occasion to consider whether the trial judge correctly allowed trial to proceed in the absence of three witnesses whom the prosecution intended to call. The court re-affirmed the need for a preliminary inquiry. Silke, V-P said,

“Once it was established that the witnesses would not attend in the circumstances as outlined here then the main issue was whether or not injustice would be done to the applicant by proceeding in their absence. In order to ascertain whether or not this was so, and so that the exercise of his discretion could be a properly informed one, it was clearly necessary for the trial judge to consider that which they would have said were they to live up to proof ………..(p. 12 of the judgment of the court)

“….Not to do so, combined with the error as the applicant’s giving the evidence which those witnesses could have given, amounts to a failure to properly exercise his discretion and vitiates it….. (p. 14 of the judgment of the court)”

11.  The sum effect of these authorities is that on an application for stay based on absence of material witnesses, there must be a preliminary inquiry into all factors and circumstances that may turn on the availability of the witnesses concerned and where, after balancing the relative advantages and disadvantages to the parties when those witnesses cannot be called, the trial judge finds that there would be injustice to the defence if trial were to proceed without those witnesses, there should be an order for the applicant.

12.  In the instant case, the materials that may be the subjects of study in a preliminary inquiry include the statement made by Wong to the ICAC, the records of telephone conversations between Wong and D1, the records of conversations at two meetings between Wong, D1 and D2, and the records of interviews of D1 and D2 by ICAC investigation officers. The prosecution invites me to study all these materials.

13.  The defence says that the statement made by Wong to the ICAC would not assist the inquiry because it would not reveal itself as a previous inconsistent statement unless the defence can demonstrate its true nature by cross-examination of Wong. With regard to the telephone conversations between Wong and D1, both the prosecution and the defence agree that they show nothing incriminating other than efforts by Wong to arrange a meeting with the defendants through D1. As to the interviews of the defendants by ICAC officers, none of the defendants made any admission. In the premises, the defence urged me to confine my study, initially at least, to the records of the two meetings between Wong, D1 and D2.

14.  I have now studied the certified translation of the records of the two meetings. The first meeting took place on 29th March 1993 at the A-1 Restaurant between Wong and D1. The record of that meeting contains 302 segments of conversations, each segment representing one speech by a person taking part. In fact, the discussion between Wong and D1 concluded at Segment 297. Of the 297 segments, 72 were recorded as wholly or partially inaudible. Among the 72 inaudible segments, 58 of them were speeches attributed to D1. Most important of all, the inaudible segments comprise the crucial parts of what was being discussed.

15.  The second meeting took place on 30th March 1993 at the Cherry Restaurant between Wong and D1 with D2 joining them at a later stage. The record submitted to me is an edited version beginning with Segment 31 and ending with Segment 230. In fact, the discussion between Wong, D1 and D2 concluded at Segment 220. Of the 190 relevant segments, 51 were recorded as wholly or partially inaudible or indistinct. Among the 51 inaudible or indistinct segments, 37 of them were speeches attributed to D1 or D2 and mostly occurring during crucial parts of the discussion.

16.  The prosecution suggests that the court may draw from the discussions as recorded the necessary inferences to convict. The defence contends that the gaps give rise to doubts and leave room for innocent explanation. I would say the recorded discussions between Wong, D1 and D2 during the two meetings do not constitute proof of guilt on the part of the defendants unless the context, i.e. the circumstances of and the police evidence relating to the drug trafficking offence, is filled in and the inaudible or indistinct parts of the discussions are clarified by direct evidence from those present at the meetings. Assuming that the prosecution can fill in the context by other available evidence, there are still many significant gaps in the recorded discussions which pose serious evidential problems. I am, therefore, inclined to think that the absence of Wong puts the prosecution in a handicapped position in the sense that the prosecution cannot fill the gaps in the recorded discussions. In other words, by making himself not available to the prosecution, Wong has benefited the defence.

17.  On the other hand, it is impossible to speculate on what Wong would be like as a witness. The defence has pointed out that Wong has a criminal record. He was involved in a drug trafficking office. He was an agent provocateur. He is a co-conspirator named in the charge of conspiracy to pervert the course of justice herein. The defence is, in my view, certainly entitled to hope to discredit him by cross-examination thereby putting the discussions in some different light. In this respect, the absence of Wong as a witness puts the defence at a disadvantage.

18.  In my view, the benefit and the disadvantage to the defence on account of the absence of Wong just about cancel each other out.

19.  It has been said that the absence of Wong as a witness prevents the defendants from mounting a full answer and defence. Now, it is true that a full answer and defence is usually mounted by cross-examining and putting the defence case to the key prosecution witness. However, in my view, in the particular circumstances of this case, the absence of Wong and the significant gaps in the recorded discussions effectively gave the defendants a free rein in the conduct of their defence. Cross-examination may not necessarily achieve the purposes intended by the defence. In any event, the prosecution is entitled to examine and re-examine Wong if he is available. As to putting the defence case, the defendants have nothing to lose by not having to disclose their case before the crown closes its case. Whatever alternative innocent explanation the defendants may have may be put forward by way of submission.

20.  It has also been said that in the absence of Wong the defendants would be forced to give evidence. With respect, I do not think this can be right. The burden of proof is always on the prosecution. The defendants do not have to go to the box to prove anything. Indeed, the odds of the defendants feeling obliged to explain anything are even, if not higher, with Wong giving evidence for Wong may fill in the gaps in the recorded discussions with allegations adverse to the interests of the defendants.

21.  In the premises, I find that there would be no injustice to the defendants if the trial proceeds without Wong.

Breach of Human Rights

22.  The Bill of Rights approach has been, if I may say so, succinctly explained in The Queen v. Ng Kam-fuk [1993] HKDCR 29. In that case, identification of the accused became a major issue during the course of trial but by then a crucial witness was not available. Judge Tyler held that Article 11 (2)(e) of the Hong Kong Bill of Rights Ordinance, Cap. 383 has no relevance to the missing witness situation. On the other hand, Article 10 (the right to a fair trial) applies because the defence should be given the opportunity of testing the evidence of one witness against the evidence of the missing witness and therefore it would be unfair to the defendant to continue with the trial in the absence of the missing witness.

23.  It is instructive to observe what the learned judge said about the different burdens of proof for an application to stay under the Hong Kong Bill of Rights Ordinance and those for applications under common law ----

24.  “Under the HKBOR application the burden of proof is as indicated above (The fair trial test). But with regard to the common law application the position is different. Cavanagh and Shaw seems to confirm a set of principles different from those applicable to common law stay principles generally. Those general principles are illustrated by the Derby Crown Court case and the test is also the fair trial test which is the same as under the HKBOR. Cavanagh and Shaw was decided 20 years ago. There has been a glut of stay applications in recent years which have established the fair trial test, a test which incorporates elements of fault, advantage/disadvantage and injustice. If I were free to do so, I would have preferred to apply the general fair trial principle to the missing witness situation. The fair trial principle makes the fault element part of the test rather than a pre-condition to it. But in my view I am not in a position to do so. The special criteria expounded in Cavanagh and Shaw was accepted by the Court of Appeal in Machiya and I must follow the principles set out in Cavanagh and Shaw.”

25.  A further twist to the debate over applicable principles came by way of The Queen v. Kevin Barry Egan [1993] 1 HKCLR 284. There, the court was faced with an application for stay on the general common law ground of abuse of process and for breach of Article 10 of the Hong Kong Bill of Rights Ordinance, Cap. 383. Deputy Judge Jones of the High Court held that

26.  “I therefore find that the protection afforded by Article 10 of a fair and public hearing is declaratory of the situation under our law now and before the enactment of the Bill of Rights. The declaration itself is of value in that it acquaints all men of their rights, but it does not enhance nor enlarge those rights, nor the remedies available for their abuse. Neither, in saying that, am I suggesting that they need enlarging.”

27.  I would hold that Article 11 of the Hong Kong Bill of Rights Ordinance, Cap. 383 gives the defendant the right to a fair trial and such right entails opportunities to test the evidence of a crucial missing witness against other evidence. Since Article 11 of the Hong Kong Bill of Rights Ordinance, Cap. 383 does not specify conditions upon which the right and opportunities may be afforded to a defendant, I believe it matters not whether the prosecution has been at fault or whether the defendant would in the final analysis or in the event benefit from the exercise of his right or from the exploitation of such opportunities. The point is, if a common law parallel is to be found for Article 11, justice must be seen to be done. In coming to this view, I bear in mind that what Deputy Judge Jones has said about the Hong Kong Bill of Rights concerns Article 10 therein only.

28.  In the instant case, counsel for the defendants have indicated that should the case proceed to trial they will object to the admissibility of the records of the discussion at the two meetings. The prosecution says that the records are like real evidence and are admissible whether Wong is called as a witness or not. For present purposes, I treat the records as admissible evidence independent of Wong. This being the case, I find that, just as in the case of The Queen v. Ng Kam-fuk, the defendants herein are entitled to test the evidence of Wong both in respect of his designs in having so conducted himself vis-a-vis the defendants and in relation to the inaudible or indistinct gaps in the recorded discussions against those records as independent evidence. Since the defendants are now deprived of such opportunities, it would not be fair to allow the trial to proceed.

29.  Accordingly, subject to what the parties may say, I shall order stay of these proceedings on the ground that to proceed further would constitute a breach of Article 11 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

Dated this 4th day of September, 1994.