HKSAR v. LEE MING TEE

HCCC191/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO.191 OF 1999

-------------------------

----------------------

-------------------------

J U D G M E N T

-------------------------

1. This is an application for a permanent stay of this proceedings on the ground that the defendant's right under Article 11(2)(c) of the Hong Kong Bill of Rights has been infringed.

2. There were two earlier applications for a permanent stay.

3. The first application was made before Pang J in April 2000. At that time there was another defendant, Mr Ronald Tse ("Tse"). After a hearing which lasted 14 days, Pang J on 21 July 2000 ordered a permanent stay. Both defendants relied on undue delay before Pang J as "a violation of the defendant's right to be tried under the common law, and also of Article 11(2)(c) of the Hong Kong Bill of Rights" (see page 34 of Pang J's judgment).

4. Pang J held that there was undue delay but concluded that a fair trial was still possible and following R. v. William Hung [1994] 1 HKCLR 4 refused a stay. However, Pang J granted a permanent stay on other grounds including breach of Article 11(2)(g).

5. The prosecution appealed to the CFA under section 32 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484. The hearing lasted six days. It commenced on 21 February and ended on 28 February 2001. The appeal was allowed on 22 March 2001, and the matter was remitted to the Court of First Instance for trial. Costs of the appeal was ordered against both defendants.

6. The new trial commenced on 5 November 2001 before Seagroatt J.

7. On 22 March 2002 on the application of the defendant and Tse, Seagroatt J discharged the jury. 4 November 2002 was tentatively fixed for the resumption of the trial. On 27 September 2002, the defendant made an application for the judge to recuse himself. That was refused. On 15 October 2002 Seagroatt J rejected an application for a stay of proceedings conditional upon payment of the costs of the first trial by the defendants. If that application had been successful, the new trial would have to be delayed, probably for a substantial time, since quantification and assessment of the costs involved in the first trial were likely to take substantial time. On 22 October 2002 Tse was permitted to leave Hong Kong for Australia for urgent medical treatment. For that reason there was a severance of the proceedings.

8. In November 2002, the defendant intimated his intention to apply to stay the proceedings permanently. The hearing of the application for permanent stay was heard before Seagroatt J in November and lasted four days. Judgment was delivered in court on 13 December 2002. He granted a permanent stay.

9. That order was appealed to the Court of Final Appeal and after a hearing which lasted 11 days commencing on 24 June 2003, judgment was delivered on 22 August 2003 allowing the appeal. The case was once again remitted for trial in the Court of First Instance. Costs was also ordered against the defendants.

10. On 13 October 2003, Pang J, as the listing judge, fixed 11 October 2004 as the date for the new trial. The defendant was represented by Mr King on that occasion. Mr King raised no objection. The estimated length of the new trial was 80 days.

11. On 1 December 2003 at a pre-trial review before the trial judge, Burrell J, the trial date was postponed to 28 October 2004. On this occasion Mr King objected to the postponement saying : "I must object to that delay because I cannot, in the circumstances of this case, be seen to be agreeing to any further delay to the start of the trial no matter how ... short."

12. In February 2004 the court was informed that an application for a permanent stay under Article 11(2)(c) would be made. The application was heard by me on three days commencing 24 May 2004.

13. Article 11(2)(c) provides that :

"(2) In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality

...

(c) to be tried without undue delay...."

14. The right under Article 11(2)(c) is independent of the right to a fair hearing provided by Article 10. It is not disputed that the fact that a fair trial can still be held is not a complete answer to a breach of Article 11(2)(c).

15. Mr Caplan for the applicant does not rely on Article 10. He does not contend that there cannot be a fair trial, but he contends that it will be unfair for the proceedings to continue. He seeks a permanent stay for breach of Article 11(2)(c).

16. The Hong Kong Bill of Rights Ordinance, Cap. 383, provides remedies for contravention of the Bill of Rights. Section 6(1) provides :

"A court or tribunal -

(a)	in proceedings within its jurisdiction in an action for breach of this Ordinance; and
(b)	in other proceedings within its jurisdiction in which a violation or threatened violation of the Bill of Rights is relevant,

may grant such remedy or relief, or make such order, in respect of such a breach, violation or threatened violation as it has power to grant or make in those proceedings and as it considers appropriate and just in the circumstances."

17. What is the court's approach when a defendant complains of unreasonable delay? The judgment of Lord Bingham of Cornhill in Dyer v. Watson [2002] 3 WLR 1488 at 1508 provides the answer :

"52. In any case in which it is said that the reasonable time requirement (to which I will henceforward confine myself) has been or will be violated, the first step is to consider the period of time which has elapsed. Unless that period is one which, on its face and without more, gives grounds for real concern it is almost certainly unnecessary to go further, since the Convention is directed not to departures from the ideal but to infringements of basic human rights. The threshold of proving a breach of the reasonable time requirement is a high one, not easily crossed. But if the period which has elapsed is one which, on its face and without more, gives ground for real concern, two consequences follow. First, it is necessary for the court to look into the detailed facts and circumstances of the particular case. The Strasbourg case law shows very clearly that the outcome is closely dependent on the facts of each case. Secondly, it is necessary for the contracting state to explain and justify any lapse of time which appears to be excessive.

53. The court has identified three areas as calling for particular inquiry. The first of these is the complexity of the case. It is recognised, realistically enough, that the more complex a case, the greater the number of witnesses, the heavier the burden of documentation, the longer the time which must necessarily be taken to prepare it adequately for trial and for any appellate hearing. But with any case, however complex, there comes a time when the passage of time becomes excessive and unacceptable.

54. The second matter to which the court has routinely paid regard is the conduct of the defendant. In almost any fair and developed legal system it is possible for a recalcitrant defendant to cause delay by making spurious applications and challenges, changing legal advisers, absenting himself, exploiting procedural technicalities, and so on. A defendant cannot properly complain of delay of which he is the author. But procedural time-wasting on his part does not entitle prosecuting authorities themselves to waste time unnecessarily and excessively.

55. The third matter routinely and carefully considered by the court is the manner in which the case has been dealt with by the administrative and judicial authorities. It is plain that contracting states cannot blame unacceptable delays on a general want of prosecutors or judges or courthouses or on chronic under-funding of the legal system. It is, generally speaking, incumbent on contracting states so to organise their legal systems as to ensure that the reasonable time requirement is honoured. But nothing in the Convention jurisprudence requires courts to shut their eyes to the practical realities of litigious life even in a reasonably well-organised legal system. Thus it is not objectionable for a prosecutor to deal with cases according to what he reasonably regards as their priority, so as to achieve an orderly dispatch of business. It must be accepted that a prosecutor cannot ordinarily devote his whole time and attention to a single case. Courts are entitled to draw up their lists of cases for trial some time in advance. It may be necessary to await the availability of a judge possessing a special expertise, or the availability of a courthouse with special facilities or security. Plans may be disrupted by unexpected illness. The pressure on a court may be increased by a sudden and unforeseen surge of business. There is no general obligation on a prosecutor, such as that imposed on a prosecutor seeking to extend a custody time limit under section 22(3)(b) of the Prosecution of Offences Act 1985, to show that he has acted 'with all due diligence and expedition.' But a marked lack of expedition, if unjustified, will point towards a breach of the reasonable time requirement, and the authorities make clear that while, for purposes of the reasonable time requirement, time runs from the date when the defendant is charged, the passage of any considerable period of time before charge may call for greater than normal expedition thereafter."

18. Mr Lloyds accepts that the period of time which has elapsed since the defendant was charged (25 August 1998), on its face and without more, gives ground for real concern. I agree. Thus it is necessary for me to look into the detailed facts and circumstances and for the prosecution to explain and justify any lapse of time which appears to be excessive.

19. But when does the clock begin to run? That was the subject of decision in England in Attorney General's Reference (No. 2 of 2001) [2004] 2 WLR 1. The provision under consideration was Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). Article 6(1) of the Convention provides :

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ..."

20. There is no difference between the entitlement to a hearing within a reasonable time and the right to be tried without undue delay. Also in Article 6(1) of the Convention and Article 11(2)(c) one is concerned with undue or unreasonable delay in the determination of "any criminal charge."

21. Their Lordships were unanimous on this issue. I need only refer to the headnotes.

"(2) That as a general rule time would begin to run for the purposes of article 6(1) from the earliest time at which a person was officially alerted to the likelihood of criminal proceedings being brought against him; and that such period would ordinarily begin when a defendant was formally charged or served with a summons rather than when he was arrested or interviewed under caution."

22. So here, in Hong Kong, I believe as a general rule the period will begin to run at the earliest time at which a person is officially alerted to the likelihood of criminal proceedings against him, which would normally be the time when a defendant was formally charged or served with a summons rather than when he was arrested or interviewed under caution.

23. Mr Caplan contends that the defendant had been officially alerted in December 1994. He relies on the letter dated 6 December 1994 from the Commercial Crimes Unit of the Attorney General's Chambers to the Listing Committee of the Stock Exchange of Hong Kong Limited :

"Dear Mr Newall,

Re : Allied group
Disciplinary hearing before
The Listing Committee of the Stock Exchange

In answer to your questions, it is likely that criminal proceedings will be instituted against Mr Lee Ming Tee, Mr Chan Chun On and Mr Ronald Tse Chu Fai. I would prefer not to comment at this stage on the nature of the allegations save to say the investigation is presently focused upon charges of making false statements as director and possibly false accounting. It is very difficult to estimate when these proceedings might be concluded as much depends upon whether it is necessary to institute extradition proceedings in relation to two of the above-named.

I am sorry that I cannot be of more assistance. You should not hesitate to contact me should you wish to discuss this further. I would appreciate it if you will keep these matters strictly confidential."

It seems that the defendant came to know of this letter when it was copied to him by the Securities and Futures Commission ("SFC").

24. Was the defendant officially notified or alerted to the likelihood of criminal proceedings against him when the defendant was supplied with a copy of the letter by the SFC? In my opinion, no. The letter was stated to be "strictly confidential". It was addressed to the Listing Committee of the Stock Exchange and not to the defendant. I do not believe that the copying of this letter to the defendant by the SFC amounted to an official communication to the defendant for the purpose of Article 11(2)(c).

25. In Pang J's decision on the first stay application, he said at page 37 :

"...I cannot say that a time lapse of two years and two months from the date of charging the defendants until the date of trial can be described as undue delay within the meaning of the provisions.of the article. However, this would have been my conclusion only if the wording of the article were construed in its strict sense. I cannot disregard the fact that investigation of the alleged criminal activities had commenced by the end of 1992. It was almost six years before the defendants were formerly charged and brought before a court.

In determining the issue of undue delay, I am of the view that courts should also take into consideration of the time taken by the investigation process. The time span, from investigation in 1992 until the scheduled trial in October 2000 must, in my view, be undue delay...."

26. That decision was made before Attorney General's Reference (No. 2 of 2001) which provided guidance on the commencement of the relevant period. Pang J did not decide when time began to run for the purpose of Article 11(2)(c).

27. It is open to me to conclude that time only began to run, in the circumstances of this case, from the date when the defendant was formerly charged, namely, 25 August 1998. Of course, although "time runs from the date when the defendant is charged, the passage of any considerable period of time before charge may call for greater than normal expedition thereafter" Dyer v. Watson at 1509. I must bear this in mind when I come to consider any post charge delay.

28. Now Mr Caplan also made the point that even if time did not run from December 1994 it ought to run at the latest from 4 June 1996 when arrest warrants were issued against Tse and Chan Chun On. I am not concerned with Chan Chun On. The charges against him were not proceeded with because his whereabouts were unknown.

29. I do not believe under Article 11(2)(c) time should begin to run not from charge but from the time when a defendant should or could have been charged. The language of Article 11(2)(c) does not require such a construction. Nor the rationale behind Article 11(2)(c), namely, that the defendant and his family should be protected from the trauma of having criminal proceeding hanging over their head.

30. In para. 15 of Detective Senior Inspector Siu Wai Sing's affirmation, he said :

" On 6 May 1996, after further investigation had been made, the Legal Department instructed us to proceed immediately with a total of 19 offences against Ronald TSE and CHAN Chun-on, and to commence extradition proceedings against them. The Legal Department instructed us not to prosecute LEE Ming-tee, at that stage but we were also under instructions not to return any unused material."

31. Earlier, he said in para. 11 of his affirmation :

" On 21 April 1995, a legal advice bundle consisting of 49 volumes was prepared and sent to the then Legal Department seeking legal advice. The Police Investigation, which had been assisted by AA who had been appointed as the investigative accountants by the Legal Department, was divided into six parts (Part A to Part F)."

32. Chief Inspector Siu said under cross-examination that in the police report potential defendants would have been identified together with potential offences. I think it highly probable that the defendant was named as one of the potential defendants. There is no evidence that he was not. Now what am I to make of the evidence? I believe I should read them as favourably to the defendant as possible. Be that as it may, it was reasonable for the police to seek the advice of the Legal Department. Hence it would not be right for me to infer that prior to 6 May 1996, one could expect prosecution to be commenced against the defendant or Tse. But why was the defendant not charged in May or June 1996?

33. Mr Caplan has invited me to infer that there was a deliberate decision on the part of the prosecution not to charge the defendant in May 1996 in order to undermine the defendant's right under Article 11(2)(c).

34. But if Article 11(2)(c) is not engaged until a person is charged (which includes being officially alerted as to the likelihood of prosecution) delay in charging would not be a contravention of Article 11(2)(c).

35. Mr L loyd for the respondent contended that no adverse inference should be drawn. At most I should infer that this was an exercise of prosecutorial discretion. This is how Mr Lloyd put it in para. 58 of the prosecution skeleton argument :

" Likewise, to defer charging the accused until efforts to have a co-accused Ronald Tse returned to Hong Kong from Australia achieved success was a reasonable exercise of prosecutorial discretion. Accused person charged with the same crimes are normally tried together, particularly in complex frauds, so as to avoid undue waste of time and resources. All the more so in conspiracy cases. The prosecution were entitled to focus first on the extradition of Mr Tse with a view to getting these alleged co-conspirators tried together. The steps taken by the police and the prosecution were legitimate and taken promptly. Delay attributable to the accused's confederates cannot be attributed to the HKSAR."

36. Mr Lloyd further submitted that I should not infer that there was any mala fides on the part of the prosecution or any deliberate undermining of the Bill of Rights.

37. On the material available to me, I do not think I can infer mala fides on the part of the prosecution. Nor do I believe that there has been a deliberate attempt to undermine the Bill of Rights. The prosecution has a discretion when to lay charges against a defendant. But a defendant is not left with no remedy. If a stale charge is laid, it could be stayed, if, for example, as a result of the delay a fair trial was no longer possible. That is possible either at common law or under Article 10 of the Bill of Rights. In the rare case where a fair trial was still possible but that the delay in charging was oppressive the defendant might have his remedy at common law. This is not such a case.

38. If I am right in thinking that time began to run from the laying of the charge, I must go on to consider whether there has been undue delay after 1998. Mr Caplan relies on three periods of delay :

(1) the eight months between Pang J's stay on 21 July 2000 and the first CFA decision on 22 March 2001;

(2) the eight months between Seagroatt J's stay made on 13 December 2002 and the second CFA decision on 22 August 2003; and

(3) the 14 months between the second CFA decision on 22 August 2003 and the prospective trial date namely, 26 October 2004.

39. As noted, delay under Article 11 is not limited to delay by the prosecution. It includes delay by the administrative or judicial authorities.

40. Before I turn to consider the first two periods of delay complained of, it may be helpful to note the nature of the appeals to the CFA.

41. Section 32 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides :

"(1)	No appeal shall be admitted unless leave to appeal has been granted by the Court.
(2)	Leave to appeal shall not be granted unless it is certified by the Court of Appeal or the Court of First Instance, as the case may be, that a point of law of great and general importance is involved in the decision or it is shown that substantial and grave injustice has been done.
(3)	Where the Court of Appeal or the Court of First Instance declines to certify as mentioned in subsection (2), the Court may so certify and grant leave to appeal.
(4)	The Court may when granting leave under subsection (1) impose a timetable on any party for the prosecution of the appeal and may either on the application of a party or of its own motion vary that timetable."

42. I take the chronology of the first CFA appeal as provided by the defendant :

"21.7.00 Trial permanently stayed by Pang J.

26.7.00 Notice of Motion for certifying questions (by prosecution).

31.7.00 questions certified by Pang J.

14.8.00 Prosecution apply for leave to appeal to Court of Final Appeal.

19.10.00 Leave granted by appellate committee of CFA.

24.10.00 Notice of Appeal lodged by the prosecution.

21-28.2.01 CFA hearing - 6 days.

22.3.01 CFA's judgment - Remitting case for trial by a different judge."

43. There is no evidence that at the time dates were fixed for the hearing of the first CFA appeal the defendant complained of any delay. That does not surprise me as four months for an appeal to the Final Court of Appeal is not unreasonable. Complicated issues of fact and law were involved. The judgment of the court was delivered within a month and, as reported, ran to 45 pages. I have no hesitation in rejecting this complaint.

44. The chronology of the second CFA appeal is as follows :

"13.12.02 Permanent stay granted by Seagroatt J.

17.12.02 Application for certificate to appeal to CFA refused by Seagroatt J.

6.01.03 Application for leave to appeal to CFA by prosecution.

11.02.03 Leave granted by CFA.

24.06.03 CFA hearing 1st day of 11 days.

22.08.03 CFA remitted case for trial."

45. Now for this appeal the estimated length of hearing was 10 days although it actually lasted 11 days. The judgment as reported ran to 48 pages and over 50 authorities were cited in the judgment. The defendant had not complained at the time dates were fixed for the hearing that it was unreasonably late. This complaint also has no merit and I reject it.

46. Mr Lloyd has drawn my attention to the fact that in each of the appeal to the Court of Final Appeal, the defendant was ordered to pay the costs of the appeal. However, the defendant's complaint is to the time taken for dealing with his appeals and not the appeals themselves. So I say nothing about Mr Lloyd's point that the defendant was responsible for the time taken to dispose of the two appeals.

47. As for the final period of 14 months, the complaint is that on 13 October 2003 the date fixed by Pang J for the retrial was 11 October 2004. No objection was raised by Mr King at the time. Mr Caplan's explanation is that there was no earlier date available. He referred me to the transcript and the exchange between Pang J and Mr Goodman :

"MR GOODMAN :	My Lord, I appear for the prosecution in this case, while Mr King appears for D1, instructed by Haldanes; and Mr Cohen, Boase & Cohen for D2. My Lord, I understand that there are dates available for this case - nothing earlier than October 2004.
COURT:	Next October that is. But the thing is, you need 100 days."

48. I don't accept the explanation. Here the defendant has the best possible legal team and he was never slow to stand on his legal right. The defendant is of course entitled to stand on his legal right. However, I should mention what Lord Hope of Craighead described as "the important point that a person should not be entitled to plead undue delay unless he has taken such earlier opportunity as there may have been to protest at the delay up to that point", Attorney General's Reference (No. 2 of 2001), [2004] WLR 1 at 26, para. 71.

49. Be that as it may, I must consider whether this length of time amounts to undue delay.

50. Mr Caplan relies on the judiciary performance pledge. The waiting time in the Court of First Instance for a hearing date of the criminal fixture list is stated to be 120 days from filing of indictment. But here the defendant has to wait 14 months for a retrial. The waiting time is a target that the judiciary tries to achieve and must vary according to the circumstances. This is a complex commercial fraud trial. The estimated length of trial is 80 days. I am told that the documentary exhibits contained some 7,000 documents in 69 lever arch folders and over 200 prosecution witnesses whose statements are contained in approximately 30 lever arch folders. Article 11(2)(c) does not required "courts to shut their eyes to the practical realities of litigious life ...." Per Lord Bingham, Dyer v. Watson, p.1509, para. 55. I note that in Archbold Criminal Pleadings Evidence and Practice 2004, 4-68, Farquharson LJ was quoted to have said in R. v. Holyoake, (unreported), 24 August 1990, CA (1739/7/90) :

"...(T)he trial took no less than 34 days. It must be perfectly obvious to everybody concerned that it was a case which required consideration and investigation in depth. Everybody is aware that these company fraud cases (a) take a long time to prepare, and (b) generally arrive at the Crown Court at a late date because of the commitments of the people concerned in the case."

51. In the circumstances, a trial date in October 2004 was not unreasonable. There was no undue delay. I believe that is the reason why Mr King raised no objection at the time. Not as suggested by Mr Caplan that objection would have been to no avail because October 2004 was the only date available. Indeed if there was the view taken by the defendant at the time I am surprised that no application had been made then and there for a permanent stay on the basis that delay until October 2004 was inevitable or unavoidable. It would not have escaped the notice of the defendant's lawyers that under section 6 of the Hong Kong Bill of Rights Ordinance the court can grant relief or remedy for threatened violation of the Bill of Rights as it considers appropriate and just in the circumstances.

52. Another complaint is that, a 3 1/2 months construction cases before Burrell J was not moved in order to accommodate the defendant. I note that the trial of that construction case was proceeding as this application was being heard by me. It is the "practical realities of litigious life" that judges and counsel are booked months ahead. But no complaint about delay was made at the relevant time. For all I know, the defendant did not wish an earlier date. Had it been made, depending on the circumstances, something might have been done. However, I do not need to deal with this hypothetical situation. Mr Caplan also complained about the lack or quality of evidence placed before me by the prosecution. How much evidence is appropriate must depend on the circumstances of the case. Having regard to the substance of the defendant's complaint, I believe sufficient evidence has been put before me.

53. I have already referred to the terms in which Mr King objected to the postponement of the trial to 26 October 2004 from 11 October 2004. I do not regard the further period of 13 days as a period of undue delay.

54. Now on the basis of my finding so far, no breach of Article 11(2)(c) has been established. That being the case, it follows that no permanent stay could be granted.

55. But in case that I am wrong about the starting date of the relevant delay, in other words, that the time began to run in December 1994 or at the time of the arrest warrants in June 1996, I should go on to consider whether a breach of Article 11(2)(c) has been made out.

56. The first area for enquiry is the complexity of the case. I have already referred to its complexity in para. 50 above. The parties agreed that I can take as a correct summary paras. 18-21 of the judgment of Sir Attorney Mason NPJ in the second CFA appeal :

"18. The respondent and Ronald Tse are charged on two counts of conspiracy to defraud, and four counts of publishing a false statement of account, contrary to s.21(1) of the Theft Ordinance, Cap. 210.

19. The case rests on four transactions entered into by companies which the prosecution say the respondent controlled:

(1)	The issue of 320 million new AGL shares of HK$0.20 each at a price of HK$0.94 per share purportedly payable in cash by independent investors pursuant to a press notice published on 23 July 1990 (the 'AGL Placement').
(2)	The issue of 128 million new ATW shares of HK$1.00 each at a price of HK$1.10 per share purportedly payable in cash by independent investors pursuant to a press notice published on 23 July 1990 (the 'ATWL Placement').
(3)	The issue of 33.7 million new APL shares in exchange for share warrants providing for payment by bankers' draft exercised by AGL subsidiaries Capscore Limited and Citiwealth Investment Limited on 31 December 1990 (the 'APL Warrant Conversion').
(4)	The issue of 140 million new shares of HK$1.00 each in APL to AGL and Cayley Limited payable in cash upon the sale of the same number of existing shares in APL in the manner detailed in an announcement dated 6 March 1991 (the 'APL Top-Up').

20. The prosecution case was that the 'independent investors' were in fact nominee companies controlled by the respondent, that cash (or any commercially recognised method of transferring funds the result of which is to give the transferee the unconditional right to the immediate use of the funds transferred) was not received where stated, and that these facts were hidden by complex accounting entries between companies controlled by the respondent, including First South China Bank ('FSCB') and an unconsolidated Cook Islands subsidiary named Prudential. FSCB purported to be a Cook Islands bank. According to the prosecution, it was a sham and FSCB was used to hide the fact that no cash was received in respect of the four transactions, and to represent falsely that the Allied Group had assets in the form of substantial short-term bank deposits.

21. The prosecution alleged that the respondent, as Chairman and a substantial shareholder of AGL, and Ronald Tse, as director and financial controller of AGL, well knew the true facts and that the public was deceived by the published information."

57. Seagroatt J in granting the permanent stay said :

"... I have had the opportunity of considering all the evidence in this case. On the face of it it discloses major corporate fraud. ..."

58. I first take the period between December 1994 and 1996.

59. The prosecution's case is that they were still investigating and not yet ready to charge the defendant.

60. On the material before me that is the more probable explanation. Mr Caplan has referred me to the notes of the steering group meeting. There is nothing in the notes of the steering group meeting which show otherwise. I need only refer to the notes for the meeting on 27 January 1994 :

"6. In response to FS' enquiry on the timing of the first charge, Mr McCabe replied that the exercise was about three months behind schedule. Assuming that he could proceed smoothly from there onwards, he would need about another year before bringing out any charges. This was because his men needed to travel to eight or nine countries in collecting the original documents before studying and analyzing the data. The meeting noted that for the OTB case, it took CCB one year to index the documents before initiating the enquiry. Mr Harris pointed out that the project would be meaningful only if good cases could be established and could hit the right, top-level people. It was also dangerous to charge pre-maturely. Mr Allen opined that the Inspector had a good deal more latitude in forming his own judgment but it would be much harder for law enforcement bodies in establishing their evidence. SFS remarked that it was simpler to bring out charges on the Tomson case, given that it was not so complicated and the police had earlier access to the documents."

61. Moreover, as the list of witness statements show, witness statements were being taken throughout 1995 and 1996.

62. Mr Caplan has made the point that there is no explanation for the delay between Mr Meocre Li's preliminary reports (a total of 7, delivered between 7 March 1994 and 22 March 1995) and his final report (16 May 1997). Chief Inspector Siu's evidence was that Meocre Li's final report which was delivered in 1997 was required for the extradition of Tse. But there is no evidence to show that Mr Meocre Li had taken an inordinate time to finalise his report. The complexity of Mr Li's task can be seen from para. 26 of Seagroatt J's judgment :

" Mr Meocre Li was the expert witness for the prosecution. The text of his evidence was to deal with the transactions which formed the crux of the charges in the indictment. He traced them through the documents. He gave evidence of the accounting exercises through the various records and books of account, and the relationship between the various companies within the Allied Group which featured in these transactions. He prepared charts and schedules which were put before the jury. He set out how these transactions should be conducted in accordance with the requirements of the SFC and the Hong Kong Stock Exchange. He had commenced giving evidence on 6 February 2002, Day 54 of the trial. He finished his evidence at the end of Day 56, the 8 February 2002 when the trial was adjourned for the Chinese New Year holiday."

63. Mr Caplan also made the point that the police had a head start because of the appointment of the inspector and the fact that the police was involved with the steering committee. That is a fair comment. But one must not underestimate the difficulty in prosecuting complex commercial fraud involving offshore companies and/or bank accounts in many different jurisdictions. On the evidence before me, I cannot infer or find any undue delay.

64. Was there undue delay between June 1996 and the laying of the charge on 25 August 1998? Again I refer to the chronology of events produced on behalf of the defendant :

"1996	4.6.96	Arrest warrants issued in Hong Kong against D2 and CHAN Chun On. (Both suspects thought to be overseas).
1997	14.3.97	Australian authorities issue warrant for the arrest of D2.
	7.5.97	D2 arrested in Australia. Extradition proceedings commenced. D2 opposes extradition.
	16.5.97	Final AA Report submitted to CCB.
	11.7.97	Australian Government informs Hong Kong authorities that fresh request for extradition necessary due to hand over of Hong Kong to China.
1998	3.4.98	High Court of Australia ruled against D2's application for Habeas Corpus.
	31.7.98	D2 consents to be extradited from Australia to Hong Kong.
	25.8.98	LMT arrested in Hong Kong by CCB.
	26.8.98	D2 escorted back to Hong Kong from Australia. LMT charged by the Police.
	27.8.98	LMT and D2 first appear in Eastern Magistracy. Both bailed."

65. I do not believe there was any unreasonable delay during this period. It was reasonable to seek the extradition of Tse and to have a joint trial of Tse and the defendant. Although the trial of the defendant and Tse were severed by Seagroatt J on 26 October 2002 so that the retrial might start in November 2002, after the second appeal to the CFA, the trial on 26 October 2004 was to be a trial of both the defendant and Tse together. Tse has subsequently pleaded guilty to one charge. The fact that a severance was at one time granted by Seagroatt J does not mean that it was not reasonable for the prosecution to wish to proceed against the defendant and Tse together.

66. In my opinion, even if the prosecution had charged the defendant in June 1996, or be taken to have done so, the time taken to await the extradition of Tse was not undue delay.

67. Lastly, in case I am wrong about unreasonable delay, I turn to consider the question of remedy. The only remedy urged upon me by Mr Caplan is a permanent stay. He described a permanent stay as the standard, logical and natural remedy.

68. Section 6 of the Hong Kong Bill of Rights Ordinance confers power on the court to :

"... grant such remedy or relief, or make such order, ... as it considers appropriate and just ..."

69. Remedy for unreasonable delay was also considered in Attorney General's Reference (No.2 of 2001). There the first point of law referred by the Attorney General for determination was "(1) whether criminal proceedings may be stayed on the ground that there has been a violation of the reasonable time requirement in Article 6(1) of the Convention, in circumstances where the accused cannot demonstrate any prejudice arising from the delay."

70. There, their Lordships were divided 7 against 2 over an important point of principle, namely, the nature of the Convention right and whether to proceed to hold a trial after the lapse of a reasonable time was itself a breach of the Convention. The majority view was that it was not. "The breach which calls for remedy comprises the state's failure to ensure the trial took place with reasonable dispatch" per Lord Nicholes of Birkenhead at para.40. In other words, "the right is to trial without undue delay; it is not a right not to be tried after undue delay", see p.11 para.19. Were it otherwise, they were of the view that the court would have no power to conduct such a trial because of section 6(1) of the Human Rights Act 1998 which provided that :

"It is unlawful for a public authority to act in a way which is incompatible with a Convention right."

71. Further the majority was of the view, a stay or dismissal of the proceedings for the state's failure to ensure that the trial took place within a reasonable time would be appropriate only if either a fair hearing was no longer possible or it would be, for any compelling reason, unfair to try the defendant.

72. The minority were of the view that a finding of a breach of the Convention is "merely the gateway to the provisions of a remedy under the Act" and that section 6(1) of the Human Rights Act would not preclude a trial. See per Lord Hope of Craighead, para. 55.

73. Section 8(1) of the Human Rights Act 1998 provided :

"In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate."

74. Here I am not concerned with that important point of principle. We don't have the equivalent of s.6(1) of the Human Rights Act. I am concerned with what is the appropriate and just remedy for breach of Article 11(2)(c).

75. On the issue of remedy for unreasonable delay, Lord Rodger of Earlsferry (who together with Lord Hope of Craighead dissented on the point of principle) agreed with the majority, he said :

"177. I would therefore hold that, when a court is faced with a situation where going on with a prosecution and holding a trial would lead to a hearing after the lapse of a reasonable time, it should not hesitate to say that these steps would violate article 6(1) and, hence, would be unlawful in terms of section 6(1) of the Human Rights Act 1998. Then, in terms of section 8(1), the court should go on to consider what relief or remedy would be 'just and appropriate' for this unlawful act of violating the reasonable time guarantee. For the reasons given by Lord Bingham, in most cases the court would conclude that a declaration or a reduction in sentence or an award of damages, as the case might be, would be the just and appropriate remedy of this unlawful act. Unless the court had assessed the position incorrectly, that remedy would also constitute an effective remedy for the violation of article 6(1) in terms of article 13 and, by granting it, the court would fulfil the United Kingdom's international obligation under the Convection. In these circumstances nothing in the Convention or elsewhere compels the court to go further and grant a stay. Indeed it would be contrary to section 8(1) for the court to grant a stay where a stay would not be the just and appropriate remedy. And, as Lord Bingham suggests, it will only be in rare cases that the just and appropriate remedy for an unreasonable delay will be a stay. Only in those rare cases need, or indeed should, the court grant such a stay under section 8(1). In other cases the trial can proceed and the defendant will get the appropriate remedy at the proper time."

76. Lord Hope was of a different view :

"110. I would answer the first point of law referred by the Attorney General in the affirmative. In my opinion criminal proceedings may be stayed on the ground that there has been a violation of the reasonable time requirement in article 6(1) of the Convention in circumstances where the accused cannot demonstrate that he will suffer any prejudice arising from the delay at his trial. It is arguable that a stay of the proceedings is the ordinary and appropriate remedy where this guarantee has been breached. That is the position which the Court of Appeal in New Zealand has adopted, it is consistent with what the Judicial Committee has held to be right for Mauritius and it is the position which has been adopted also by the High Court of Judiciary. But, as it is open to the court under section 8(1) of the Human Rights Act 1998 to make such order within its powers as it considers just and appropriate, I would not go so far as to say that it was the inevitable remedy. I would hold that the proceedings may be stayed if, in all the circumstances, the court considers this to be the appropriate remedy."

77. The majority's view can be found in paras. 24 and 25 of Lord Bingham's judgment :

"24. If, through the action or inaction of a public authority, a criminal charge is not determined at a hearing within a reasonable time, there is necessarily a breach of the defendant's Convention right under article 6(1). For such breach there must be afforded such remedy as may (section 8(1)) be just and proportionate. The appropriate remedy will depend on the nature of the breach and all the circumstances, including particularly the stage of the proceedings at which the breach is established. If the breach is established before the hearing, the appropriate remedy may be a public acknowledgement of the breach, action to expedite the hearing to the greatest extent practicable and perhaps, if the defendant is in custody, his release on bail. It will not be appropriate to stay or dismiss the proceedings unless (a) there can no longer be a fair hearing or (b) it would otherwise be unfair to try the defendant. The pubic interest in the final determination of criminal charges requires that such a charge should not be stayed or dismissed if any lesser remedy will be just and proportionate in all the circumstances. The prosecutor and the court do not act incompatibly with the defendant's Convention right in the continuing to prosecute or entertain proceedings after a breach is established in a case where neither of conditions (a) or (b) is met, since the breach consists in the delay which has accrued and not in the prospective hearing. If the breach of the reasonable time requirement is established retrospectively, after there has been a hearing, the appropriate remedy may be a public acknowledgement of the breach, a reduction in the penalty imposed on a convicted defendant or the payment of compensation to an acquitted defendant. Unless (a) the hearing was unfair or (b) it was unfair to try the defendant at all, it will not be appropriate to quash any conviction. Again, in my case where neither of conditions (a) or (b) applies, the prosecutor and the court do not act incompatibly with the defendant's Convention right in prosecuting or entertaining the proceedings but only in failing to procure a hearing within a reasonable time.

25. The category of cases in which it may be unfair to try a defendant of course includes cases of bad faith, unlawfulness and executive manipulation of the kind classically illustrated by R v Horseferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42, but Mr Emmerson contended that the category should not be confined to such cases. That principle may be broadly accepted. There may well be cases (of which Darmalingum v The State [2000] 1 WLR 2303 is an example) where the delay is of such an order , or where a prosecutor's breach of professional duty is such (Martin v Tauranga District Court [1995] 2 NZLR 419 may be an example), as to make it unfair that the proceedings against a defendant should continue. It would be unwise to attempt to describe such cases in advance. They will be recognisable when they appear. Such cases will however be very exceptional, and a stay will never be an appropriate remedy if any lesser remedy would adequately vindicate the defendant's Convention right."

78. Mr Caplan has urged me to follow the route taken in Canada, the United States and New Zealand and hold that the natural or ordinary remedy for a breach of the reasonable time provision is a permanent stay.

79. According to Lord Bingham :

"... In Canada it has been held that in circumstances such as these a stay should be granted: Rahey v The Queen (1987) 39 DLR (4th) 481; R v Askov [1990] 2 SCR 1199; R v Morin [1992] 1 SCR 771. A similar answer has been given in the United States: Doggett v United States (1992) 505 US 647. In the face of a long and unjustified delay by a prosecutor, the New Zealand Court of Appeal has allowed an appeal against refusal of a stay: Martin v Tauranga District Court [1995] 2 NZLR 419."

Attorney General's Reference (No.2 of 2001) at 10, para. 18.

80. But, as noted, in Attorney General's Reference (No. 2 of 2001) eight of their Lordship took a different view. The ninth, Lord Hope, said :

"110.... But, as it is open to the court under section 8(1) of the Human Rights Act 1998 to make such order within its powers as it considers just and appropriate, I would not go so far as to say that it (a stay) was the inevitable remedy. I would hold that the proceedings may be stayed if, in all the circumstances, the court considers this to be the appropriate remedy."

81. With great respect, I find the Lord Bingham's judgment (with which all but Lord Hope agreed) overwhelmingly persuasive. I place particular reliance on the following passage in his judgment.

"22. Thirdly, a rule of automatic termination on proof of a breach of the reasonable time requirement has been shown to have the effect in practice of emasculating the right which the guarantee is designed to protect. It must be recognised, as the Privy Council pointed out in Dyer v Watson [2002] 3 WLR 1488, 1508, para 52, that the Convection is directed not to departures from the ideal but to infringements of basic human rights, and the threshold of proving a breach of the reasonable time requirement is a high one, not easily crossed. Judges should not be vexed with applications based on lapses of time which, even if they should not have occurred, arouse no serious concern. There is, however, a very real risk that if proof of a breach is held to require automatic termination of the proceedings the judicial response will be to set the threshold unacceptably high since, as La Forest J put it in Rahey v The Queen 39 DLR 481, 516, 'Few judges relish the prospect of unleashing dangerous criminals on the public'. La Forest J drew attention to the compelling observation of Professor Amsterdam, written with reference to American experience following the Supreme Court's decisions interpreting the sixth amendment to the United States Constitution in Barker v Wingo (1972) 407 US 514 and Strunk v United States (1973) 412 US 434:

' the spectre of immunizing, of 'turning loose', persons proved guilty of serious criminal offences has been thoroughly repugnant to judges, and they have accordingly held that shockingly long delays do not 'violate' the sixth amendment. The amendment has thereby been twisted totally out of shape - distorted from a guarantee that all accuseds will receive will receive a speedy trial into a windfall benefit of criminal immunity for a very few accuseds in whose cases the pandemic failure of our courts to provide speedy trials has attained peculiarly outrageous proportions' : Anthony G Amsterdam, 'Speedy Criminal Trial: Rights and Remedies' (1975) 27 Stan L Rev 525, 539."

82. Moreover, section 6(1) requires the court to "grant such remedy or relief or make such order ... as it considers appropriate and just. ..." "It does not predetermine the question as to what remedy, in terms of section 8(1), is just and appropriate" per Lord Hope, para. 55. Section 6 provides the court with a box of tools, I can see no reason why the axe must invariably be the first tool it reaches for. What is the appropriate and just remedy must depend on the circumstances. As Lord Hope said at para. 59 of his judgment "...all that is needed is a sensible approach to the way in which the discretion is exercised, bearing in mind all the factors that Lord Bingham has identified." I do not overlook the benefit of taking a firm line on the elimination of delays in the criminal justice system. The prosecuting authority must not think that unreasonable delay does not matter. It matters greatly. That applies to everyone involved in the administration of justice. Unreasonable delay will be dealt with firmly. In every case, the court will provide a remedy which is just and appropriate according to its particular circumstances. In most cases, it would not be just and appropriate to order a permanent stay. In a suitable case the court will say enough is enough and grant a permanent stay. But always, the court will endeavour to grant a remedy which is just and appropriate as well as effective.

83. Further, there are authorities to guide me in Hong Kong. R. v. William Hung [1994] 1 HKCLR 47, a decision of the Court of Appeal, is a decision on Article 11(2)(c). There, as here, a fair trial was possible. The relevant question was whether the case was an exceptional one in the sense of being a case in which a stay could be obtained in reliance upon the Bill of Rights even though a fair trial was still possible.

84. Mr Caplan took issue with R. v. William Hung and submitted that it merely applied the common law and he referred me to Mills v. HM Advocate (No.2) (PC) 2002 SLT 939 at 941[5] where Lord Steyn emphasised the "higher normative force" which is attached to constitutional rights such as Article 11(2)(c). But I see no indication that the Court of Appeal was giving Article 11(2)(c) anything less than its full measure. Rather it provided a reminder that one should not underestimate the reach of the common law when an abuse of human rights was made out. This is what Bokhary JA said at page 53 :

"Both counsel have concentrated - and rightly so - on article 11(2)(c) of the Bill of Rights rather than on article 5(3) thereof. Article 5(3) provides an alternative: 'trial within a reasonable time or release' (our emphasis). Bail could provide a solution there. But bail was not granted in the present case until a very late stage. And in any event, even a person on bail is entitled to trial without undue delay. That is plain from the terms of article 11(2)(c) which entrenches the entitlement 'to be tried without undue delay' as a minimum guarantee for everyone in full equality. And that provision apart, it is - and has always been - inherently important that someone who is to be tried be tried without undue delay. To varying degrees according to all the circumstances, awaiting trial, even on bail, is something which, by its nature, carries with it stress on the part of the accused and disruption of his life.

...

In the present case, Duffy, J. said that article 11(2)(c) 'does not confer an absolute right'. We would not agree if by that he meant to imply any qualification which the Bill of Rights itself does not express. It is, however, correct to say that the court's task in a stay application is not simply to decide whether or not there has been an infringement of the defendant's entitlement to be tried without undue delay and, if there has, automatically to stay the prosecution. The public interest requires more than that. And that requirement is catered for by s. 6(1)(b) of the Bill of Rights Ordinance (Cap. 383), which provides that where a court is confronted with a violation of the Bill of Rights or a threat thereof, its duty is to grant such remedy with its power' as it considers appropriate and just in the circumstances'.

...

That brings us to the third and final stage, namely, the one at which this question arises: is the present case an exceptional one in the sense of being a case in which a stay can be obtained in reliance upon the Bill of Rights even though the stay application cannot pass the test formulated at common law? It is on this question that both counsel have concentrated. In our view, the answer to the question is 'No'. Such exceptions would be rare. That is, of course, not because of any low human rights content in the Bill of Rights. Rather, it is because the human rights content of criminal justice at common law in this day and age is already high. That is clear once it is appreciated that these things, whether they are considered at common law or under the Bill of Rights, necessarily involve the interests not only of individuals on their own but also of society as a whole.

We in the present case, like the Privy Council in the Cheung case (supra), refrain from determining the extent of the difference between the approach to be adopted to stay applications under the Bill of Rights and the one to be adopted to such applications under the common law. That task should be reserved to some future case which provides an appropriate factual context in which to perform it. We have weighted the circumstances of the present case. There is nothing in them capable of carrying this application beyond the general run of stay applications and thus into the rare category of such applications which are capable of succeeding upon a test different from the one generally applied in such applications."

85. I see no material difference between the decision in R. v. William Hung and the decision in Attorney General's Reference (No.2 of 2001). Indeed, R. v. William Hung has been reinforced by the latter decision. Thus, on the authority of R. v. William Hung as well I reject any suggestion that a permanent stay is the standard remedy.

86. Furthermore, the decision of the Court of Final Appeal in the second application for stay which is reported in 2004 1 HKLRD 513 also provides guidance. It was not concerned with undue delay. But there as here,

"184....It is for the judge to weigh countervailing consideration of policy and justice and then, in the exercise of the discretion, decide whether there is an abuse of process which requires a stay."

Per Sir Anthony Mason NPJ at 566.

87. In exercising my discretion under section 6(1) I should also have regard to what Sir Anthony Mason NPJ said at para. 187 :

"187. In doing so, the Court must take account of the important public interest in the detection and punishment of crime, more particularly serious crime, as a result of which the investing public has suffered loss. The Court must take account also of the public expectation that persons charged with serious criminal offences will be brought to trial unless there is some powerful reason for not doing so. On the other hand, the Court must have regard to preserving the integrity of the criminal justice system. The Court must also consider the serious burden imposed upon the defendant of facing yet a second lengthy trial."

88. Now, although it is not the defendant's case that a fair trial is no longer possible, Mr Caplan has forcefully reminded me of the evil of undue delay in para. A1(a) of his skeleton argument, and in his oral submissions. There is also some evidence on the defendant's state of health. The trauma of having criminal proceedings hanging over one's head is well recognised. However, here, the defendant made an unsuccessful (and unmeritorious) application for a conditional stay, see para. 7 above, which, if successful would have delayed the trial substantially. So the defendant's protest about delay must be treated with reservation. I think it is open to me to say that there is no indication in this case that the defendant was ever desirous of an early trial.

89. Further, Mr Caplan has made the point that the history of this prosecution is truly exceptional and that it is unfair to permit it to go to trial. He has listed seven factors for my consideration :

(1) the offences were allegedly committed 14 years ago. On its face and without more, this gives rise to real concern, but I have dealt with the time taken. I have said I do not believe there was any unreasonable the dealing since 1994. I should add that there was no unreasonable delay earlier. This prosecution involves complex commercial fraud and the time taken by the inspector was reasonable.

(2) two judges had stayed the prosecution. But as the Court of Final Appeal has decided, they were wrong. The defendant should not have made the applications which resulted in a waste of time. Mr Caplan said that the applications were not frivolous. But that is not the point. The point is that the defendant made two applications which were ultimately unsuccessful, and as a result of which the trial was delayed.

(3) the defendant had undergone a lengthy trial. This is relevant to whether a retrial should be ordered. The Court of Final Appeal permitted a retrial.

(4) 14 months delay. I have already dealt with that. If the defendant had not made the 2nd application for permanent stay, he would have had a trial in November 2002. The loss of counsel through appointment to the Bench and the permission to take the evidences of two witnesses out of Hong Kong are the normal incidence of litigation.

(5) the stay applications were not frivolous. I have already dealt with this.

(6) the nature of the case. Tse who has pleaded guilty to the 5th count has been given a suspended sentence. I refer to what Seagroatt J said quoted in para. 57 above.

(7) no loss was suffered by anyone. On this, Mr Caplan relies on the evidence of Sir Gordon Macwhinnie and Mr Brian O'Connor. I have been referred to the transcript of their evidence. However, I do not believe they support Mr Caplan's submission that nobody suffered any loss. Mr Caplan submitted that the prosecution drew a line in the sand of 1992 and that Mr Meocre Li never went beyond 1992. Mr Caplan seems to suggest (vaguely and probably deliberately so) that even if payment had not been made before 1992, they were made subsequently. There is no such evidence before me. Seagroatt J in his summing-up Day 70, p.70 said : "The proceeds, predicted or stated to be realised, were over $680 million. In fact, something in the region of $100 million, the prosecution say, only were realised." Mr Caplan said and correctly so that Seagroatt J had not finished his summing-up. But, I quote this simply to show that on the material before me I cannot accept that there was no loss.

90. I am of the opinion that none of the above reasons, whether taken individually or together, would enable me to say that it would be unfair for the trial to continue. Or made this a case where a permanent stay would be just and appropriate.

91. It follows that the application for a permanent stay is dismissed because I am of the view that there has been no undue delay. In any event, in the exercise of my power under section 6(1), I do not regard a permanent stay as appropriate or just.

Representation:

Mr Ian S. Lloyd & Roger Beresford, instructed by Department of Justice, for the Respondent

Mr Jonathan Caplan Q.C. and Alexander King, instructed by Messrs Haldanes, for the Applicant