Case Detail

HCCC000169B/2001

HCCC169 & 232/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NOS.169 AND 232 OF 2001

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BETWEEN
	HKSAR

	AND

	LEE TSANG KONG	4th Accused

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Coram: Hon Nguyen J in Court

Date of Hearing: 17 September 2002

Date of Ruling: 29 November 2002

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R U L I N G

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1. On 28 June 2002, after 58 days of trial, I discharged the jury in relation to the 3rd count. The 3rd count was preferred against the 1st, 2nd and 4th accused and alleged that between 1 December 1995 and 30 April 1996, they conspired together and with other persons to defraud Hang Seng Bank Limited. There are seven counts altogether in the indictment and a total of four accused persons. The 4th accused is only indicted on the 3rd count.

2. On 17 September 2002, Mr C.Y. Wong SC appeared on behalf of the 4th accused and applied for the costs of the trial. Mr Wong relies on section 17 of the Costs in Criminal Cases Ordinance, Cap.492 ("the Ordinance"), which reads as follows :

"Where at any time in the course of criminal proceedings a court or a judge is satisfied that costs have been incurred in respect of the proceedings by a party to the proceedings as a result of an unnecessary or improper act or omission by or on behalf of the other party to the proceedings, the court or the judge may, after hearing all such parties, order that all or part of the costs so incurred shall be paid to the first-mentioned party to the proceedings by the other party to the proceedings."

3. Ms Draycott appearing for the prosecution submits that because of section 25 of the same Ordinance, section 17 is not applicable to the present matter. Section 25 states :

"This Ordinance shall not apply to criminal proceedings in respect of offences committed before the coming into operation of this Ordinance."

She makes that submission without conceding that there had been any unnecessary or improper act or omission by the prosecution in the trial. The Ordinance came into force on 17 January 1997. As mentioned above, the offence of conspiracy to defraud alleged in the 3rd count, which was the only count against the 4th accused, was allegedly committed between 1 December 1995 and 30 April 1996 which was clearly before the commencement of the operation of the Ordinance.

4. The 2nd count against the 1st, 2nd and 3rd accused alleged an offence between 1 July 1995 and 30 April 1998 which was after the commencement of the Ordinance and the 4th count against the 1st accused alleged an offence between 1 February 1996 and 30 April 1998, also after the commencement of the Ordinance. The 6th count against the 1st, 2nd and 3rd accused alleged an offence between 1 November 1995 and 31 January 1998, also after the commencement of the Ordinance and the last count against the 1st accused alleged an offence between 1 January 1996 and 31 January 1998, again, clearly after the commencement of the operation of the Ordinance.

5. Section 25 would appear to be the authority for the proposition that section 17 does not apply to the 4th accused in the present case. However, Mr Wong contends that section 25 has no application to the present case because the offences in counts 2, 4, 6 and 7 were committed after the operational date of the Ordinance.

6. Ms Draycott's reply is that the 4th accused's costs were incurred solely in respect of count 3 of the indictment which alleges a conspiracy before the Ordinance became effective and therefore the 4th accused's costs are irrecoverable. She submits that the applicant was only a party to the proceedings in respect of the offence with which he was charged and those are the proceedings in which his costs were incurred. She submits that he was not a party to the proceedings in respect of offences committed by others, and the fact that he was present during the trial whilst those proceedings were conducted does not make him a party. She submits that the interpretation relied upon by Mr Wong would mean that a person's entitlement to costs would depend on the date of his co-defendants' crimes and so any such entitlement would disappear if his co-defendants were, for example, severed from the indictment or were never joined in the first place or absconded, died or were never apprehended. She submits that for the Ordinance to have any certainty, the relevant dates must be the dates between which the crime alleged against the applicant was alleged to have been committed, for those are the proceedings to which he is a party.

7. I agree with that submission and in my judgment, for the purpose of determining whether the Ordinance applies, only the date of the crime alleged against the 4th accused in the 3rd count should be taken into consideration. He was only concerned with that 3rd count and he was a party to the proceedings only insofar as the 3rd count was concerned.

8. Mr Wong's second point in relation to section 25 is that it has no application to criminal proceedings where it has not been proved that offences alleged against the defendant have been committed. He submits that if the legislature had intended section 25 to cover "alleged offences" or "offences alleged to have been committed", it would have said so in clear terms. This point was however unsuccessfully argued in The Secretary for Justice v. Heung Chin Tong & Others, HCMA154/1998, where Mayo JA (as he then was) said that :

"It is very clear from a consideration of the Ordinance as a whole that it is artificial to attempt to separate the concept of an offence from criminal proceedings which are referred to in section 25."

He continues :

"It is not a constructive exercise to contemplate criminal proceedings divorced from the commission of an offence.

What is envisaged by the Ordinance is criminal proceedings and this includes the offence or alleged offence which is the subject matter of the criminal proceedings.

There can be no doubt that the Ordinance does not have a retrospective effect to include criminal proceedings which were instituted prior to the date when the Ordinance came into effect."

9. A similar ruling was made by Keith J in The Secretary for Justice v. Chan Cheung Chor, HCAL102/1998, where the learned judge said :

"However, that Ordinance [the Costs in Criminal Cases Ordinance] did not apply to the present case, because section 25 provides that it is not to apply to criminal proceedings in respect of offences committed before the Ordinance came into operation. The Ordinance only came into operation on 17th January 1997, i.e. well after the date of the offences with which the Respondent had been charged."

10. In my judgment, "offence" as used in section 25 clearly includes "alleged offence".

11. Mr Wong's submission continues that if the Costs in Criminal Cases Ordinance does not apply to the present case, then resort can be had to the UK "Costs in Criminal Proceedings Practice Directions 1991", the wording of which is similar to the wording of section 17 of the Ordinance. His authority for that proposition was R. v. Ng Yui Kin & Others [1983] HKLR 356 where it was held that Hong Kong was to follow practice directions in England in awarding costs to a defendant.

12. Ms Draycott's submission is that the power to award costs in criminal proceedings has always been governed by statute. This proposition was decided in a number of Hong Kong cases, for example, A.G. v. Ho Yuen Kwong [1971] HKLR 259, A.G. v. Ip Wai Kwong [1982] HKLR 93, A.G. v. A Deputy District Court Judge [1991] 2 HKLR 507 and A.G. v. Lam Sau Ki, Criminal Appeal No.442 of 1991. In that last case, the Court of Appeal held that that court had no inherent jurisdiction to award costs. Ms Draycott submits that the power to award costs is not a matter of practice and procedure. Practice and procedure is the way in which a legal power should be exercised rather than the law that establishes or defines that power. In R. v. Chu Kwan Kong & Others [1977] HKLR 371, Mr Commissioner O'Connor said :

" In my view the phrase 'practice and procedure' relates to the means by which a legal right or duty is enforced or a legal rule applied as distinguished from the law which establishes or defines that right, duty or rule. ..."

The case of Chu Kwan Kong was approved in Ng Yui Kin (supra). In both that case and R. v. Kwok Moon Yan and Lok Man Chiu [1989] 2 HKLR 396, there was an existing Hong Kong statutory power to award costs and the English Practice Directions were held to govern the application of those powers.

13. In my judgment, therefore, there is no statutory power to award the applicant his costs and the English Practice Directions of 1991 have no application to the present matter.

14. The 4th accused's application for costs is therefore dismissed.

	(Peter Nguyen)
	Judge of the Court of First Instance
	High Court

Representation:

Ms Charlotte Draycott, Counsel on fiat, for HKSAR

Mr Ching Y. Wong, SC leading Mr Jonathan Wong, instructed by Messrs Henry Wan & Yeung, for the 4th Accused

HCCC000169/2001

HCCC169 & 232/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NOS. 169 & 232 OF 2001

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BETWEEN
	HKSAR

	AND

	HO SUI HOI	1st Accused
	TAM KEI KWONG	2nd Accused
	LEUNG CHI POR	3rd Accused
	LEE TSANG KWONG	4th Accused

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Coram: Hon Nguyen J in Court

Dates of Hearing : 15 - 18 April 2002

Date of Ruling: 25 April 2002

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R U L I N G

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Ruling on application for stay of proceedings

1. The 2nd, 3rd and 4th accused, through their counsel, applied for a permanent stay of the proceedings. The 2nd accused, through his counsel Mr Chandler, relies upon the judgment of Lord Devlin in Connelly v. Director of Public Prosecutions [1964] A.C. 1254, at page 1359 where Lord Devlin said :

".... As a general rule a judge should stay an indictment (that is, order that it remain on the file not to be proceeded with) when he is satisfied that the charges therein are founded on the same facts as the charges in a previous indictment on which the accused has been tried, or form or are a part of a series of offences of the same or a similar character as the offences charged in the previous indictment. He will do this because as a general rule it is oppressive to an accused for the prosecution not to use rule 3 where it can properly be used. But a second trial on the same or similar facts is not always and necessarily oppressive, and there may in a particular case be special circumstances which make it just and convenient in that case. ...."

2. Rule 3 mentioned above is Rule 3 of Schedule I to the Indictments Act 1915 which says :

"Charges for a new offence .... may be joined in a same indictment if those charges .... form or are a part of a series of offences of the same or a similar character."

We have a similarly worded rule in Rule 7 of the Indictment Rules. Mr Chandler relies on the speech by Lord Devlin for the proposition that where charges are founded on the same facts or form or are a part of a series of offences of the same or a similar character, then they ought to be charged in the same indictment because, otherwise, it would be oppressive to the accused person. Mr Chandler accepts that where there are special circumstances, then a second trial on the same or similar facts may be justified; however, he contends that if there are special circumstances, the onus is upon the prosecution to show the special circumstances.

3. In Connelly, the appellant was charged with murder and robbery in two separate indictments. In accordance with the then practice he was tried for murder alone and he was convicted. On appeal, the conviction was quashed. The prosecution then proceeded with the prosecution of the robbery count and the appellant was convicted of that. The House of Lords was really concerned with the plea of authrefois acquit and held that the plea must be given a limited scope and it was not a bar to the appellant being tried afresh on the robbery charge.

4. The cases subsequent to Connelly that Mr Chandler relies upon where he says the principle enunciated by Lord Devlin was applied were all cases where the new indictment was founded on the same facts or incident rather than as we have here on a course of conduct which extends over a period of time. For instance, in R. v. Riebold and Another [1967] 1 WLR 674, the appellant was charged with conspiracy and substantive counts of theft, and the prosecution elected to proceed on the conspiracy count alone, and in R. v. Beedie [1998] Q.B. 356 where there were two prosecutions based on the same facts; similarly in R. v. Moxon-Tritsch [1988] CLR 46 where there were two prosecutions based on the same facts.

5. In my view, the proposition by Mr Chandler is not supported by the authorities. The law is that the burden of proof of abuse of process rests upon the applicant and the standard of proof is on a balance of probabilities. In AG's Reference (No. 1 of 1990) [1992] 1 QB 630, the court stated that :

".... no stay should be imposed unless the defendant shows on the balance of probabilities that ...."

In that case, Lord Lane CJ (giving the opinion of the court) said (at 643) :

"Stays imposed on the grounds of delay or for any other reason should only be employed in exceptional circumstances .... in principle the imposition of a permanent stay should be the exception rather than the rule."

In George Tan v. Cameron [1992] 2 AC 205, at 221, Lord Mustill in the Privy Council said :

"It is important to emphasis at the outset the magnitude of the task which the applicant has set himself in this appeal .... it is equally beyond doubt that the discretion to prevent a prosecution from going to trial should be very sparingly exercised ...."

In R. v. Horseferry Road Magistrate's Court Road ex parte Bennett [1994] 1 AC 42, at 74H, Lord Lowry in the House of Lords said :

"The jurisdiction to stay must be exercised carefully and sparingly and only for a very compelling reasons. The discretion to stay is not a disciplinary jurisdiction and ought not to be exercised in order to express the court's disapproval of official conduct."

6. The definitive authority for Hong Kong is the judgment of the Court of Final Appeal in HKSAR v. Lee Ming Tee and Another, FACC No.8 of 2000 where the court said "In most such cases, the court only grants the stay because .... a fair trial for the accused is found to be impossible and continuing the prosecution would amount to an abuse of process". Ribeiro PJ considered the previous cases and concluded that :

".... the common thread in these authorities is the requirement that a fair trial has become impossible, making continuance of the prosecution an abuse of the court's process."

He continued :

"The public interest lies in the guilt or innocence of the accused being fairly and openly determined at trial. For this to be displaced, powerful reasons must exist for concluding that such a trial, although fair, would nonetheless constitute an intolerable abuse of the court's process. The instances where such an argument has any prospects of success must necessarily be very rare."

7. What happened here is that the 2nd, 3rd and 4th accused were charged with and tried in the District Court on 17 counts of conspiracy to defraud, the bank being defrauded being the Hua Chiao Commercial Bank Limited, and in each charge it was alleged that a company, Dragon Marine Services Limited, applied for letters of credit in favour of a company Pure Guard Industrial Company.

8. In the High Court in the present proceedings, those three persons were indicted together with another person with seven counts of conspiracy to defraud (the 2nd accused - three counts, the 3rd accused - two counts and the 4th accused - one count), the bank allegedly defrauded being the Hang Seng Bank Limited, and it is alleged that two companies, Au Kiang International Company Limited and Dero Enterprises Limited, applied to the bank for letters of credit in favour of a number of companies, and in two counts the beneficiary company was Pure Guard Industrial Limited.

9. The period concerned in the District Court trial was from 1993 to 1997 and in the present proceedings from 1995 to 1998. The three accused persons before me contend that the two sets of charges involve a series of offences of the same or similar character and therefore fall in Rule 7 of our Indictment Rules and, therefore, could be joined in the same indictment.

10. The prosecution having separated the charges into two cases and proceeding firstly with the District Court case before proceeding with the High Court case, the applicants now contend that :

(1) In the case of the 2nd accused by splitting the offences into two trials, he has been deprived of his good character in the 2nd trial.
(2) If the present trial is to proceed, the ICAC witnesses, who were involved in the voir dire conducted in the District Court, will have the unfair advantage of knowing the nature of the allegations in relation to the issue as to admissibility and the 2nd accused will suffer prejudice because any discrepancies between the evidence he gave in the District Court and any evidence he might give in the present trial will be used against him.
(3) The prosecution will have the advantage of knowing in general terms the 2nd accused's defence and the District Court rejection of his evidence will potentially impact negatively upon his confidence to properly defend himself. This is an erosion of his freedom of choice as to whether or not to give evidence in the present trial.
(4) The prosecution witnesses, who are common to both trials, would have the advantage of what was effectively a "dummy-run" in the District Court.
(5) If the trial proceeds, there will be an infringement of the rationale behind the principle discerned by Cockburn CJ in R. v. Elrington (1861) 1 B&S 688, that is to say, there should be no subsequent trial, on the same facts, for offences on an ascending scale of gravity. It is contended that what the prosecution here is proposing is precisely that two trials on an ascending scale of gravity will take place.

11. Where these grounds are applicable to the 3rd and 4th accused, they were adopted by their counsel. In addition, it was contended on behalf of the 2nd accused that the records of interview that he gave to the ICAC cannot now be edited because if it were done it would cause injustice to him in that, his explanations to the High Court charges were contained in his explanation to the District Court charges.

12. In my view, taking all matters into account it has not been shown that if the present trial were to proceed these three accused persons cannot have a fair trial on the counts that they face.

13. Dealing now with the specific grounds relied upon by the three accused persons.

(a) Ground One : the deprivation of the good character of the 2nd accused

This ground was met with the concession by the prosecution that it would be accepted that at the time of the alleged commission of the present offences the 2nd accused was a person of good character. However, and this is accepted by Miss Draycott for the prosecution, this does not assist the 2nd accused with the good character direction on credibility if he should give evidence in the present trial. However she contends that this situation quite often arises where an accused person is properly charged in two or more separate cases and, if he is convicted on the first trial, then at the subsequent trials a similar situation will arise. I agree with that submission.

(b) Ground Two

Arguably, even from the point of view of good case management and enabling the jury in the present trial to come to grips with all the issues, the two sets of charges could have been indicted in the same indictment or to make it even simpler for the jury the charges can be pared down or a single or two conspiracy to defraud charge preferred in lieu of the present charges involving different letters of credit and different companies. However, the decision was made by the Department of Justice to separate the charges into two cases and to have the District Court trial proceed before the present trial. It is contended on behalf of the prosecution that the two cases involve different companies and different personalities or the same personalities in different capacities.

The case in the District Court happened to be listed before the present trial because the list in the District Court is shorter than that in the High Court. In my view, in the same way that a combination of all the charges could have been justified, a separation of the charges was, on the facts, also justified. What I am concerned with is not so much questioning the decision to separate the charges but whether on the present indictment the three accused persons can have a fair trial.

I find that if the present trial proceeds, the ICAC witnesses who were involved in the voir dire will not have an unfair advantage even if they now know the nature of the allegations in relation to the issue as to admissibility. If the trial in the District Court had not taken place, these witnesses will have to be cross-examined in the present trial. In the course of cross-examination, the accused's case will have to be put to each of the witnesses, so each of those witnesses will know sooner or later the nature of the allegations made against them.

I am also informed that in the voir dire in the District Court, no serious and substantive allegations of impropriety were made against the ICAC officers, and what was contended was really that the treatment of the accused persons was oppressive, in that they were subjected to long interviews and in some of those interviews they had taken place in the early hours of the morning.

Regarding the contention that any discrepancies in the evidence of the accused persons between the first trial and the present trial being used by the prosecution, I find that this is inevitably so but it is not a matter which, throwing all matters in the balance, will deprive the accused persons concerned of a fair trial in the coming High Court trial.

(c) Ground Three

In my view, the prosecution does not have the advantage of knowing beforehand in general terms the defence of each accused person because where an accused person gave interviews to the ICAC, the prosecution will have an idea of what his defence may be in the coming trial. In my view, the rejection by the District Court of the accuseds' evidence should not impact negatively upon his or their confidence to properly defend himself in the present trial. Whether he gives evidence in the coming trial is a matter that he will have to decide after receiving advice from his legal representatives.

(d) Ground Four

I find that any civilian prosecution witnesses who gave evidence in the District Court and who may be called to give evidence in the present trial did not have the advantage of a dummy-run in the first trial. I am told that the matters upon which they will be asked to give evidence about in the present trial, were matters upon which they were not cross-examined at all in the District Court trial. These matters, at least in the District Court trial, were non-contentious. If they should become contentious in the present trial, then these civilian witnesses will not have any advantage because they were not cross-examined upon those matters in the previous trial.

(e) Ground Five

This I have dealt with in my comments in relation to Ground Two.

(f) Ground Six

This is the contention about what was said by the 2nd and 3rd accused persons in their records of interview. I have gone through the records of interview, especially those parts where it is said that an explanation was given to the District Court charges which would or might be of application to the present charges. In my view, where Dragon Marine, which was the company involved in the District Court charges, was mentioned, if the defence wishes those parts to be placed before the jury in the present trial then they are entitled to do so. It is not up to the prosecution to decide what parts should be excised and what parts should be allowed to remain.

I am only concerned with anything which appears in the records of interview which may lead the jury to the conclusion that either the accused concerned was guilty of other charges or he was suspected of having taken part in other similar allegedly illegal activities involving other companies.

I am concerned with the following answers or allegations by the ICAC officers and, in respect of these, if the defence wishes them to remain they will, but otherwise I order that they be excised from the record :

The 2nd accused's R/1

Page 9,363 - Answer 1,028
Page 9,364 - Question 1,035
Page 9,366 - Answer 1,040
Page 9,372 - Question 1,075
Page 9,379 - Answer 1,108

The 3rd I/T

Page 10,436 - Answers 1,159 and 1,163
Page 10,442 - Answer 1,190
Page 10,489 - Question 1,483
Page 10,490 - Answer 1,484

Any editing can, of course, only be done after any issues of admissibility are determined. The motions by the 2nd, 3rd and 4th accused for a permanent stay are refused.

	(Peter Nguyen)
	Judge of the Court of First Instance
	High Court

Representation:

Miss Charlotte Draycott, Counsel on fiat, for HKSAR

Mr Lawrence Lok, SC and Ms Katty Tsang, instructed by Messrs Y.C. Lee, Pang & Kwok, for the 1st Accused

Mr James Chandler, instructed by Messrs Hobson & Ma (Director of Legal Aid), for the 2nd Accused

Mr Graeme Mackay, assigned by Director of Legal Aid, for the 3rd Accused

Ms Kelly Shui, instructed by Messrs Henry Wan & Yeung, for the 4th Accused

HKSAR v. LEE TSANG KONG

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	(Peter Nguyen)
	Judge of the Court of First Instance High Court