HKSAR v. Hon Ming Kong and Others

FAMC Nos. 25, 26 & 27 of 2014

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NOS. 25, 26 & 27 OF 2014 (CRIMINAL)

(ON APPLICATIONS FOR LEAVE TO APPEAL

FROM CACC NO. 272 OF 2011)

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BETWEEN

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REASONS FOR DETERMINATION

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Mr Justice Fok PJ:

1.After hearing submissions for the applicants, we dismissed these applications for leave to appeal without calling on the respondent.  We also made an order of costs against each of the applicants in favour of the respondent.  We indicated that we would hand down our reasons for doing so in due course, which we now do.

The applications

2.Following a lengthy trial, which commenced in April 2008 and in which the District Court sat for 128 days in a period of over 38 months (for various reasons which attracted trenchant criticism of them by the Court of Appeal), the applicants were each convicted in June 2011 on various charges arising from an indictment containing 14 charges of conspiracy.  On appeal, the Court of Appeal[1] set aside the convictions of the three applicants on some of the charges but dismissed their applications for leave to appeal on the remaining charges.[2]

3.The applicants’ applications to the Court of Appeal for the certification of various points of law of great and general importance under section 32(2) of the Hong Kong Court of Final Appeal Ordinance[3] were dismissed on 14 May 2014 and the applicants renewed their applications for such certification and for leave to appeal to this Court under section 32(3) of the Ordinance.

4.The points of law for which leave to appeal was sought were common to the three applicants and were these:

“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.In addition, the second and third applicants sought leave to appeal on the substantial and grave injustice limb.

No point of law of great and general importance involved

6.Despite the wider ambit of the questions of law said to be involved, it was apparent from the submissions addressed to us at the hearing that the real focus of the applicants’ proposed appeal was the Judge’s[4] refusal on 27 September 2010 of an application made on behalf of the first and third applicants to stay the proceedings as an abuse of process.  That application arose out of the applicants’ claim that various witnesses resident in Mainland of the PRC could give evidence which would be favourable to them.  Letters of request were issued by the Court under section 77E of the Evidence Ordinance[5] addressed to the Supreme People’s Court (the SPC) requesting the SPC to summon those witnesses to be examined orally.  Those letters of request were ultimately not executed and no admissible evidence was eventually obtained from those witnesses in the Mainland.  The 1^st and 3^rd applicants sought disclosure of the correspondence between the respective authorities of the HKSAR and the PRC in relation to the letters of request but that was refused by the Judge as was their further application for a permanent stay of proceedings against them on the grounds of abuse of process.  Although this is a simplification of a very complicated factual background,[6] it is sufficient for present purposes.

7.Insofar as the points of law relied upon seek to raise arguments of constitutional law and procedure regarding mutual legal assistance in criminal proceedings, we are satisfied that these arguments are wholly misconceived and do not begin to raise arguable grounds of appeal.  The permissive terms of Article 95 of the Basic Law[7], even if read together with Article 87 of the Basic Law[8], plainly do not impose a duty to put in place a scheme for mutual legal assistance in criminal matters.  Similarly, the argument, based on the absence of a compulsory mechanism in the PRC to ensure that the evidence of the Mainland witnesses was taken pursuant to the letters of request issued by the court in Hong Kong, that the PRC was in breach of its obligations under the International Covenant on Civil and Political Rights is not a matter justiciable before the courts of the HKSAR.[9]

8.The crux of the applicants’ complaint is that the Judge was wrong to allow the prosecution to proceed against them because it was impossible for there to be a fair trial due to an inequality of arms[10], so that he ought instead to have granted a permanent stay.  They also complain that, having proceeded to trial, the Judge erred in failing to assess the impact on the applicants of the absence of the evidence of the Mainland witnesses.

9.However, the principles on which a permanent stay of criminal proceedings will, in highly exceptional cases, be granted are well-settled[11] and were common ground between the parties.  The grant or refusal of a stay is a fact-sensitive question of discretion and the burden is on the applicant for a stay to show, on a balance of probabilities, that the trial is so prejudiced by the matter of which he complains that it is beyond the power of the judge to preside over and hold a fair trial.  In the present case, the Judge exercised his discretion to refuse a stay and the Court of Appeal, exercising that discretion afresh because it considered the Judge to have erred in two respects, reached the same conclusion, Stock VP holding:

“478. I have earlier intimated that if and in so far as the judge concluded that establishing malice was a condition precedent to establishing an abuse of process and that if and in so far as he concluded that there was no burden upon the prosecutorial authorities to assist the applicants in their efforts, such as they were, to secure testimony from the Mainland witnesses, he erred. It is open to this Court, therefore, to look at the matter afresh in order to determine whether despite those errors, he was wrong to order a stay of proceedings.

…

597.  A stay of criminal trial will be justified only in the clearest of cases; and the burden of establishing an abuse of process lies squarely on the defendant who makes the application.  In the light of that principle and the history of the case which I have deliberately addressed in considerable detail, I nurture no unease whatsoever in this case about the judge’s refusal to stay these proceedings.  It would in my judgment have been perverse had he ruled otherwise.  Indeed, I come away from the case with the opinion that there was indeed an abuse of the court’s process but that the abuse was at the hands of the first applicant.”

10.Although we would leave open the question as to the formulation of the duty on the prosecution to assist the defence in the securing of evidence from witnesses in the Mainland,[12] which may call for further consideration in a suitable case, it is clear that the applicants’ argument that it would be unjust and unfair for the trial to proceed because they were unable to secure the evidence of the Mainland witnesses for their criminal trial was carefully considered by the Court of Appeal and rejected for the comprehensive reasons set out in the judgment of Stock VP.

11.It is sufficient, in this context, to quote the conclusions which Stock VP reached from his painstaking review of the very detailed history of the proceedings (and which he set out at §482 as a preface to that review in his judgment) and his findings as to why the first and third applicants had failed to lay a sufficient foundation for a stay of proceedings (at §596):

“482. I am satisfied that:

(1) there was in fact no inequality of arms – the prosecution had themselves sought to secure evidence on commission from the Mainland and had failed and in that the applicants chose to use section 77E of the Evidence Ordinance as their avenue for securing evidence, that was equally an avenue open to the prosecution and an avenue which could have proved effective;

(2) the applicants and their advisers did not use their best endeavours to secure the evidence from the Mainland witnesses – their utilisation of the process was markedly tardy and the eagerness on paper to secure assistance was not matched by proactivity in practice;

(3) serious questionsare raised as to the true availability of the evidence: no adequate evidence was presented from Hong Kong lawyers or their Mainland counterparts as to the reason or reasons for the non-production of a single signedstatement from any one of the Mainland witnesses; no request was made from the Mainland authorities for the Mainland lawyers to take witness statements; insufficient action was taken to arrange for the witnesses to be present at a particular time and place for the taking of evidence pursuant to the letters of request; the reasons given for not coming to Hong Kong to give evidence were on their face unconvincing bare assertions; no adequate documentary evidence in support of the proposed witnesses’ testimony was forthcoming; there were alternative sources for some of the evidence, the failure to produce which was not explained; and the offer of video link evidence was never pursued by those acting for the applicants;

(4) the assertions of deliberate obstructionism on the part of the HKSAR and the Mainland authority is not made out. Although there were unexplained and therefore unsatisfactory delays on the part of the Mainland authorities, the Hong Kong authorities did much to assist;

(5) the judge did agreat deal to accommodate the defence by according them ample time to secure the evidence;

(6) the failure by the judge to assess or, if he did assess, to say what weight he accorded the summary of evidence of the Mainland witnesses’ proposed testimony, a summary prepared by the prosecutor is, in the event, of no consequence because it was a summary that merited no weight; and

(7) the absence of compulsory process on the Mainland is a non-issue in this case because the witnesses upon which the appeal concentrates were asserted by the defence to be willing witnesses.

…

596.

As against that, on the part of the applicants D1 and D3:

(1) The suggested efforts by the applicants to secure the evidence from the Mainland needs to be viewed through a prism coloured by conduct throughout the trial (especially by D1) which bears all the hallmarks of repeated attempts to derail the proceedings.

(2) There was a one-year delay of the commencement of the trial at the request of D1 specifically for the purpose of enabling D1 to secure evidence of these supposedly important witnesses. But at the end of that whole year, no application had been made for the issue of a single letter of request – indeed, none was made until December 2008, a fact to be viewed against the representations made in September 2007 by counsel for D1 that ‘we envisage very very soon making an application for a section 77E order.’ I am not impressed by the suggestion that this tardiness is irrelevant to what happened after the letter of request was issue; for the tardiness is but part of the history from which the court is entitled to doubt the commitment of D1 to securing evidence as part of a trial which he was content to see run to its proper conclusion.

(3) In relation to most of the Mainland witnesses, no satisfactory explanation has been forthcoming, why they could not come to Hong Kong. None of the Mainland regions in which they are said to have resided is at the other end of the planet and we can take it as obvious from the history of this case that D1 was in a position readily to fund their travel and accommodation expenses. Some of the witnesses were in any event well connected with Hong Kong. It was hinted in the course of submissions that some might not wish to come because of the fear of bringing proceedings upon their heads in Hong Kong. That may be so, but it is difficult in the case of certain of the witnesses – for example the man Qi – to see whence such a fear derived.

(4) There were other witnesses in Hong Kong, for example one of the Hon brothers in relation to the kidnap story and the other Hon brother who represented Guilin China Science in Hong Kong, in respect of whom no explanation has been advanced as to why they could not cover the same ground as one or more of the Mainland witnesses.

(5) The repeated suggestion in argument that it was not possible for Mainland lawyers to take statements from witnesses on the Mainland is contradicted by the fact that they say they did just that; and in any event if there were such difficulties, there is no suggestion of any request by them from the authorities to do so.

(6) Some of the reasons for not giving section 65B statements are, on their face, nonsensical; for example, that the giving of evidence is more conducive to explaining themselves.

(7) There is no evidence whatsoever of attempts by the Mainland lawyers or by their Hong Kong counterparts to keep in touch with their witnesses to ensure that if there was a change of address or contact number, the SPC could be notified; and no suggestion that any one of them was asked to present himself to a provincial court or other authority.

(8) No suggestion was made by the Hong Kong lawyers that the witnesses might present themselves at a particular venue for examination via a video link.

(9) It is a remarkable fact that none of the proofs of evidence of D1’s witnesses, all in like form albeit from different firms of lawyers, is in the first person singular and none is signed.

(10) It is a further remarkable fact that despite repeated GS requests for personal confirmation from the witnesses themselves that they were prepared to give evidence (given, in some cases, their suggested change of heart from when they were seen by SPC agents), not a single such confirmation was forthcoming and no reason for that failure was ever provided.

(11) Some of the accounts given in the proofs of evidence – I have in mind the accounts given by Wong and by Qi – do not ring true (Wong) or are not supported by direct available testimony (Qi).”

12.The argument ostensibly based on R v Holgate (No.1)[13], complaining of a failure to weigh the material relating to the proposed evidence of the Mainland witnesses, could not avail the applicants.  The Judge clearly did take the absence of the proposed testimony of the Mainland witnesses into account in deciding whether or not to grant a stay of the proceedings.  In the trial itself, the unsigned statements of the Mainland witnesses were not admissible and, in any event, as Stock VP observed, the prosecutor’s summary of their proposed testimony merited no weight.  The circumstances of the present case, in which the absence of the Mainland witnesses’ evidence was (as the Court of Appeal found[14]) effectively a contrived absence, were far removed from the particular circumstances that led to the decision in R v Holgate (No.1).[15]

13.The Court of Appeal’s fresh exercise of discretion to uphold the refusal of the stay was therefore unimpeachable and we were satisfied that no point of law of great and general importance was involved in the proposed appeal.

No substantial and grave injustice shown

14.The second and third applicants additionally sought leave to appeal on the substantial and grave injustice limb.  In support, extensive submissions of considerable detail were addressed to us.

15.It has, however, repeatedly been stated that this Court does not function as a second court of appeal and this ground of appeal is limited to cases where it is demonstrated there has been a departure from accepted norms so seriously to an applicant’s disadvantage as to constitute a substantial and grave injustice.[16]

16.We were satisfied that each of the particular complaints respectively raised by the second and third applicants in this regard were properly considered by the Court of Appeal and did not involve departure from any accepted norm such as to constitute the requisite degree of injustice to justify the grant of leave to appeal.

Conclusion

17.For these reasons, the applications for leave to appeal were dismissed with costs to the respondent.

Ms Clare Montgomery QC, Mr Eric Kwok SC, Ms Vivian Ho and Mr Kestrel Lam, instructed by Simon C W Yung & Co., for the 1^st Applicant (Applicant in FAMC 25/2014)

Mr Edward Fitzgerald QC, Mr Eric Kwok SC, Ms Vivian Ho and Mr Kestrel Lam, instructed by Simon C W Yung & Co., for the 3^rd Applicant (Applicant in FAMC 26/2014)

Mr Peter Duncan SC, Mr Benson Tsoi and Mr Yuan Shan Cao, instructed by Hau, Lau, Li & Yeung, for the 2^nd Applicant (Applicant in FAMC 27/2014)

Mr Jonathan Caplan QC and Ms Kasmine Hui, PP, of the Department of Justice, for the Respondent