HKSAR v. Hon Ming Kong and Others

CACC 272/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 272 OF 2011

(ON APPEAL FROM DCCC NO. 661B OF 2006)

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BETWEEN

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

1.By a judgment dated 28 March 2014, we allowed the appeals of these applicants in respect of certain convictions in the District Court upon a number of charges of conspiracy to defraud but dismissed their applications for leave to appeal convictions upon other charges on the same indictment.

2.In respect of the offences of which the applicants remain convicted, Notices of Motion have now been filed, pursuant to the provisions of section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, for certificates that certain points of law of great and general importance are involved in the decision of this Court.

3.The parties have agreed that the motions be determined on the basis of written submissions and without a hearing.

4.There are two notices of motion: one on behalf of the first and third applicants, the other on behalf of the second applicant but each motion proposes the same questions for certification, namely :

“ 1. Whether Article 95 of the Basic Law imposes a mutual legal obligation between the HKSAR and the Mainland to put in place a scheme for mutual legal assistance in criminal matters.

2. Whether the absence of a compulsory mechanism on the Mainland to secure the attendance of witnesses in proceedings constitutes a failure by the PRC to comply with its obligations under the International Covenant on Civil and Political Rights (ICCPR), and that inability to secure the testimony of defence witnesses constituted a breach of Article 14 of the ICCPR, Article 11(2)(e) of the Hong Kong Bill of Rights Ordinance, to which constitutional protection is conferred by Article 39 of the Basic Law, and hence gave rise to an inequality of arms.

3. Whether the failure of the HKSAR/Government Secretariat to recognise their legal duty to cooperate and assist in facilitating the execution of letters of requests made it impossible to have a fair trial, and hence the circumstances rendered it unjust for the prosecution to proceed; notwithstanding the Court of Appeal’s finding that by its conduct the Government Secretariat had in fact cooperated.

4. Whether the failure of the trial judge to assess and/or say what weight he accorded the summary of evidence of the Mainland witnesses’ proposed testimony is wrong in law and contrary to the decision of R v Holgate (No.1) [1996] 3 HKC 315.”

5.It would not be prudent here to attempt a summary of our judgment for to do so would run the risk of detracting from the effect of a detailed analysis of the history of the proceedings in the court below, which analysis reveals, in our judgment, the highly fact and case specific basis upon which we concluded that the applicants had entirely failed, on the facts, to establish an abuse of process; indeed, that it would in our judgment have been perverse had the judge ruled in favour of the application for a stay of criminal proceedings.

6.Apart from the fact (as to the first posed question) that we see it as self-evident that Article 95 of the Basic Law is an enabling provision, the first and second questions are unnecessary to decide in this case, because the decision of this Court is essentially based on the procedural conduct and disagreeable tactics on the part, primarily, of the first applicant and their impact upon the suggestions of abuse of process.

7.The third question is not a question of law of general application but is, even as posed, self-evidently context specific.  We explained in the judgment why the failure to recognise the legal duty to which reference is made did not, on the facts of this case, assist the stay application since, in the event, co-operation was provided and since, on all the facts and in the light of the full history, the applicants failed to lay a sufficient foundation for a stay of proceedings.

8.The fourth question also ignores case-sensitive context; for we explained in the judgment why the so-called “ statements” in this case and the summary of them merited no weight and why, therefore, the judge's failure to say what weight he accorded the summary mattered not.

9.The motions are, accordingly, dismissed.

Mr Jonathan Caplan QC & Miss Kasmine Hui PP, of the Department of Justice, for the Respondent

Mr Eric Kwok SC, Miss Maggie Wong & Miss Vivian Ho, instructed by Simon C.W. Yung & Co., for the 1^st & 3^rd Applicants (D1 & D3)

Mr Benson Tsoi, instructed by Hau Lau Li & Yeung, for the 2^nd Applicant (D2)