Read the full judgment text of HCAL 127/2012 on BabelCite. This Court of First Instance judgment was delivered on 18 January 2013 before Poon J.
Administrative and constitutional law – judicial review of criminal proceedings – leave to apply for certiorari and mandamus – District Court refusal to grant a permanent stay of criminal proceedings – application of the arguability test of Po Fun Chan v Winnie Cheung – criminal law – permanent stay of proceedings – two limbs: impossibility of fair trial and affront to public conscience – R v Horseferry Road Magistrates' Court, Ex parte Bennett – HKSAR v Lee Ming Tee – charges of conspiracy to defraud and money laundering arising from HK$31 million of letters of credit issued for non-existent transactions of asphalt, concrete mix and steel bars – liquidators' complaint to the Commercial Crime Bureau following winding up of Wing Fai Construction Company Limited – defendants' allegation that the liquidators used the prosecution as leverage to force a global civil settlement, that pre-4 September 2009 DOJ files were missing, and that the Supervising Senior Assistant DPP Mr Shiu directed his secretary to delete documents from the DOJ central computer system on 25 May 2012 – first stay application dismissed on 5 June 2012 – re-opened stay application dismissed on 10 September 2012 – whether the District Judge's decision was reasonably arguable as erroneous – held: it is not reasonably arguable that no fair trial is possible because all deleted documents had been recovered and the only case-related document (the Minutes of the September 2008 meeting) had already been disclosed to the defence; it is not reasonably arguable that Mr Shiu's conduct amounted to bad faith or an affront to public conscience warranting a stay, as the facts were materially distinguishable from Dairy Farm – Dairy Farm Company Ltd v The Director of Food and Environmental Hygiene distinguished – leave to apply for judicial review refused – applicants to pay the Secretary for Justice's costs of the leave application, with a certificate for two counsel, to be taxed if not agreed.
Legal issues: Whether no fair trial is reasonably arguable due to Mr Shiu's conduct · Whether Mr Shiu's conduct amounts to an affront to public conscience warranting a stay
Outcome: Leave to apply for judicial review refused; the District Judge's refusal to grant a permanent stay of the criminal proceedings stands.