Case Detail

HCCC 78/2016

[2019] HKCFI 1205

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 78 OF 2016

______________

BETWEEN
	HKSAR
and
	NGAI Hon Kwong (魏漢光)	Accused

______________

Before:

Deputy High Court Judge Bruce SC in Court

Dates of Hearing:	17,18 December 2018 and 15 January 2019
Dates of Rulings:	18 December 2018 and 15 January 2019
Date of Reasons for Rulings:	8 May 2019

________________________________

REASONS FOR RULINGS
ON
(1 )Application to withdraw
admissions made under section 65C of
the Criminal Procedure Ordinance, Cap 221
(2) Application to exclude evidence in the records
of interview made by the accused on the basis
of the exercise of the discretion of the court
(3) Application to reopen the prosecution case to
adduce evidence in rebuttal of the defence case

________________________________

INTRODUCTION

1. At various stages during the course of this trial I gave rulings as to aspects of the conduct of the trial. In respect of three of these rulings, I undertook to publish my reasons for them in due course. The rulings concerned:

  (1)  an application by the accused made before the commencement of the trial to withdraw the admissions made by counsel then representing the accused at a previous trial in respect of this matter;
  (2)  an application by the accused made before the commencement of the trial to exclude aspects of the video recorded interviews of the accused on the basis that the interviews had been unlawfully tampered with by the police or those responsible for the prosecution of the accused; and
  (3)  an application by the prosecution during the course of the trial to reopen the prosecution case to adduce evidence in rebuttal of the defence case.

APPLICATION TO WITHDRAW SECTION 65C ADMISSIONS

2. Prior to the arraignment of Ngai Hon Kwong, on 11 December 2018 a pre-trial hearing was undertaken. In the course of that hearing, it became apparent that the accused did not wish to be bound by the admissions which were made under section 65C of the Criminal Procedure Ordinance, Cap 221 at his previous trial. The present trial is a retrial. At a previous trial before Deputy Judge Stuart-Moore and a jury, the accused was convicted of murder. He appealed to the Court of Appeal. That Court ordered that his conviction be quashed and that the accused be retried on a fresh indictment.

3. At the pre-trial hearing to which I have just made reference, the accused also asserted that there were deliberate omissions and exclusions from the video recorded interviews which the prosecution intends to present to the jury in this trial. The accused asserted that this was unfair to him and on that basis I ordered that a preliminary enquiry be conducted following the arraignment of the accused to ascertain whether there was a basis upon which one or more of the video recorded interviews might be excluded because to present it to the jury might be unfair to the accused. As will shortly appear, the voluntary nature of the video recorded interviews is not a matter in contention.

Procedural history

4. In order to understand the context in which this application is made it is necessary to note aspects of the procedural history of this matter.

5. The accused was arraigned on a charge of murder and tried before Deputy Judge Stuart-Moore and a jury. On 28 October 2014, the accused was convicted and sentenced to imprisonment for life.

6. The accused appealed against his conviction and on 5 February 2016, the appeal was allowed by the Court of Appeal (Lunn VP, Macrae and McWalters JJA) and the conviction quashed but an order was made by the court that the accused be retried on a fresh indictment.

7. On 17 December 2018, the accused was arraigned on the fresh indictment.

The application: Admissions pursuant to section 65C of the Criminal Procedure Ordinance

8. It is pertinent to note that the accused is not represented at this trial. At various stages those Judges of this Court hearing preliminary matters concerned with the management of this case have in strong terms urged the accused to obtain representation. On 11 December 2018, that advice was repeated by this Court in strong terms but it is apparent that the accused is determined to represent himself. For reasons which will become apparent shortly, it is equally pertinent to note that at his first trial before Deputy Judge Stuart-Moore and a jury, the accused was represented by Ms Monica Chow, Barrister at Law.

9. At the trial before Deputy Judge Stuart-Moore, there are three documents headed as admissions made under section 65C of the Criminal Procedure Ordinance. Those documents are signed by prosecuting counsel on that occasion and defence counsel then acting on behalf of the accused on the instructions of the Director of Legal Aid. On those same days, the transcript of those proceedings reveals that the terms of those documents were read in open court and were orally translated into Chinese. It is to be noted from the transcript that, according to Ms Chow, the third of these documents originated from the defence.

10. In these proceedings, the accused has asserted that he did not make these admissions and the documents signed by Ms Chow and the prosecutor and read in open court as I have described were not made with his authority.

11. I called for a transcript of the presentation of the Admitted Facts at the previous trial. What is apparent from that transcript is that the Admitted Facts were read out in open court. Deputy Judge Stuart-Moore did not specifically ask the accused whether he admitted the facts which were read out. Nevertheless, the trial proceeded upon the basis that these facts had been admitted. The other thing that became obvious from the transcript was that one set of Admitted Facts had actually been made on behalf of the accused. No complaint appears to have been made on appeal.

12. No evidence was called in the determination of the issues relevant to this topic. I was, nevertheless, informed that the prosecution had arranged for Ms Chow and other members of the former legal team of the accused to testify had that become necessary. For reasons which will shortly become apparent, that became unnecessary.

Principles

13. Section 65C of the Criminal Procedure Ordinance provides a means whereby admissions in criminal proceedings may be made by or on behalf of the prosecutor or defendant and the admission by any party of any such fact under this section shall as against that party be conclusive evidence in those proceedings of the fact admitted. Section 65C(2) sets out the conditions for reception as follows:

“ (2) An admission under this section—
(a) may be made before or during the proceedings;
(b) if made otherwise than in court, shall be in writing;
(c) if made in writing by an individual, shall purport to be signed by the person making it and, if so made by a body corporate, shall purport to be signed by a director or manager, or the secretary or clerk, or some other similar officer of the body corporate;
(d) if made on behalf of a defendant who is an individual,shall be made by his counsel or solicitor;
(e) if made at any stage before the trial by a defendant who is an individual, must be approved by his counsel or solicitor (whether at the time it was made or subsequently) before or during the proceedings in question;
(f) may be made in either official language.”

If these requirements are met, the admissions are to be conclusive evidence in those proceedings of the fact admitted. Further, section 65C(3) also provides that an admission made under this section “shall be treated as an admission for the purpose of any subsequent criminal proceedings relating to that matter (including any appeal or retrial).”

14. Section 65C(4) provides a means by which any such admission may be withdrawn. The sub-section provides:

“ An admission under this section may with the leave of the court be withdrawn in the proceedings for the purpose of which it is made or any subsequent criminal proceedings relating to the same matter.”

As will shortly appear, it was not necessary to consider the nature and scope of the discretion reposed by section 65C(4) and what factors might inform the exercise of that discretion.

Disposition

15. The procedure that was adopted was for the Court to go through each of the assertions of fact in the Admitted Facts made at the previous trialto ascertain the position of the accused as to those facts. It became apparent in this process that the accused did not understand the nature and scope of some of the admissions. Further, for other admissions contained in the Admitted Facts he accepted that these facts were true. An example of this relates to those facts which were concerned with the medical treatment of the deceased and the findings of doctors at the accident and emergency facilities where the deceased was initially taken to following the fire. Accordingly, the accused indicated that he was content for this part of the Admitted Facts to go forward. There were other facts in this same category.

16. There were two categories of facts in the Admitted Facts which it became clear that the accused did not fully understand the limited nature and scope of the admissions. The first category concerned the taking of photographs at various places germane to the incident which gave rise to the death of the deceased. Part of the case for the prosecution which, I understand, is accepted by the accused is that he had used the drug commonly known as ice and some of the photographs depict paraphernalia associated with the consumption of ice. The first point to note in this context is that the terms of the Admitted Facts in relation to the taking of photographs was that the relevant photographs which are to be placed in a Jury Bundle were simply taken at a particular place at a particular time by a particular officer. As it turned out, that fact was not disputed by the accused. His concern is to show that some of the photographs are not to be relied on because they are, in effect, staged. In other words, the problem is not the fact of the photograph being taken at the place and time it was taken but rather what was presented in the photograph. Once it was made clear to the accused that it would be open to him to make his argument that some of the photographs were, in a sense, staged or, perhaps did not accurately depict how things were at the scene at the time of the fire then it became clear that he had no objection to the Admitted Facts relating to the taking of the photographs in their specific terms. Accordingly, the accused indicated to the Court that he was content for this category of Admitted Facts to be placed before the jury.

17. The next category of Admitted Facts about which the accused was concerned was the assertion that three of the video recorded interviews were taken voluntarily. Again, it became apparent that the accused did not fully understand the limited nature and scope of the facts asserted and, more pertinently, the limitation of the scope of that which was asserted. This was important because a central contention of the accused is that the interviews, while voluntary, were improperly altered and that what the jury would see was not an accurate representation of what had been recorded. The accused asserted that certain parts had been deliberately omitted and other matters such as dates and times had been improperly altered. He wished to raise these matters as part of his case before the jury. On any reading of the Admitted Facts as they are framed, that course would still be open to him and once that was made plain to the accused, he indicated that he was content for this category of Admitted Facts to go forward.

18. In the course of enquiry by the Court, it was plain that what the accused was really concerned about was whether the Admitted Facts would hamper the presentation by him of certain points that he wished to put before the jury. In short, the terms and scope of the Admitted Facts did not have that effect. It became apparent that this was the real concern of the accused as opposed to an assertion that counsel for the accused made the admissions without authority. In the result, it became clear after going through each of the facts asserted in the Admitted Facts that the accused was content for those to go before the jury in their present form. It was clear that his contention had nothing to do with an issue of whether or not the Admitted Facts were made without his authority. In any event, any fair reading of the transcript of the previous trial relating to the presentation before the jury of the Admitted Facts showed no suggestion that counsel had no authority and indeed, as it turned out one set of Admitted Facts had been made on behalf of the accused.

Conclusion

19. After a series of exchanges with the accused, I was satisfied there was no basis to exercise a discretion to permit the Admitted Facts to be withdrawn. In the premises, the Admitted Facts presented at the previous trial may be placed before the jury. So as to avoid possible prejudice which might be occasioned were the jury in the present trial to discover that the accused was previously convicted of the charge of murder, I directed the prosecutor when referring to the Admitted Facts and presenting those to the jury to proceed upon the basis that the documents were simply made “in an earlier proceeding”.

ISSUES RELATING TO THE AUTHENTICITY OF THE VIDEO RECORDED INTERVIEWS

20. The issues in relation to this matter must be understood against the background that one component of the Admitted Facts was admissions that certain of the video recorded interviews were voluntary. (There is a further post record of the response of the accused to his arrest which will be presented. No assertion has been made that this is not voluntary and should that issue arise during the course of the trial it will be ruled upon. I apprehend that the accused does not challenge the voluntariness of this post record and it is, in any event, not significantly harmful to his case. It is simply that there is no specific admission in the current set of Admitted Facts as to the voluntariness of the post record.)

21. The essence of the assertions made by the accused in connection with the video recorded interviews is that aspects of them have been improperly altered. In view of the nature of the assertions of the accused,I proceeded upon the basis that it was conceivable that if this was true that there might be a basis for excluding one or more of the video recorded interviews or possibly excluding part of one or more of those interviews. The basis for exclusion could conceivably have been that the exclusion made some part or possibly all of one or more of the interviews unfair if there were the kinds of improper alteration as asserted by the accused. That there is a jurisdiction in the court to exclude some or all of the admissions against interest made by the accused that the prosecution wished to present is a well-known component of the laws of evidence: R v Sang [1980] AC 402; R v Lai Kin Ming [1984] HKC 1; R v Lam Yip Ying [1984] HKLR 419; SJ v Lam Tat Ming & Anor (2000) 3 HKCFAR 168.

22. Three issues arose for consideration in this case. These were:

  (1)  the identification of those parts of the video recorded interviews which had been tampered with;
  (2)  the identification of what had been edited out of the video recorded interviews; and
  (3)  whether unfairness to the accused was revealed by either (1) or (2) (or both) and whether the unfairness was of a nature which would have justified the exclusion of some or all of the video recorded interviews.

23. On any view, almost all of the time spent on this topic was attempting to identify with a reasonable degree of precision the factual basis of the assertions. The initial position of the accused was to make very generalised assertions and, making full allowance for facts such as the length of time which is passed since those video recorded interviews were made and the difficulty of identifying not so much what is there but what is not there, the position of the accused shifted ground on numerous occasions. At one stage the accused asserted that that which was to be played in the present trial was not that which was played in the previous trial. As a result of this assertion I ordered a copy of the audio recording of the trial in order to assess what, if any, relevance this had on the issues that I was being asked to consider. The accused asserted that the police or the prosecution (or both) had tampered with the evidence which was presented at the earlier trial. That was a matter of serious concern and I noted that the master discs of the video recorded interviews which were presented at the previous trial were kept by the court although court records reveal that a request was made by the Department of Justice to obtain these to test their authenticity. Andrew Chan J ordered that the master discs and some other evidence be written at least into the custody of the Department of Justice and the discs were amongst other evidence which was picked up by a police officer. All of this was recorded in the correspondence file pertaining to this case.

24. At one stage the accused asserted that there was a video recorded interview which was not to be played at the present trial which had been played in the previous trial. I undertook the task of starting to review the audio recording of the previous trial to ascertain what had been presented. The notes of the learned trial Judge who conducted the previous trial were not available and had they been available the process may have been simpler. In the event, although I commenced listening to the relevant passages of the audio recording, for reasons which will shortly become apparent it was not necessary to conclude that task.

25. It became obvious during the course of my trying to ascertain from the accused what the problems with the video recorded interviews were that one possible solution to this was to play the video recorded interviews. I also invited the prosecution to consider calling the officer who have picked up the master discs of those interviews and those who have handled the discs and, indeed, an officer who examined them. This suggestion was made shortly before the mid-morning break on 18 December 2018. When the court resumed following that break, the prosecutor indicated that he proposed to call such witnesses as well as to play the relevant master discs. I indicated to the accused that this would be possibly relevant to a determination of whether the discs had been tampered with and whether what was to be played at this trial was somehow different to that which had been played at the previous trial. (At this stage, I had yet to determine the relevance of the last issue.) When I informed the accused that this is what I proposed to permit he told the court that he now had no challenge to the authenticity of the recordings. As the accused had become somewhat emotional over the matter immediately preceding the mid-morning break (which was taken slightly early because of that circumstance) I asked the accused to confirm that this was indeed his position. He confirmed that it was and that his position was that the video recorded interviews could now be played at the trial.

26. On that premise, it appeared to me that there was no factual basis for me to exercise the discretion reposed in the court to exclude some or all of an otherwise voluntary admission. I ordered that the video recorded interviews that the prosecutor intended to play could be played before the jury.

APPLICATION BY PROSECUTION TO REOPEN ITS CASE

27. The context of this application was the constant theme on the part of the accused manifested in cross examination of prosecution witnesses and during the presentation of the testimony of the accused and the defence case in general that the police to a large extent and the prosecuting authorities to a lesser extent conducted their case with perfidious dishonesty and engaged in shameless manipulation of facts and evidence. A feature of that theme was the testimony and the treatment of the testimony of the exhibits officer who was present at the apartment where the fire occurred shortly after the police arrived following the death of the victim and, most pertinently for this application when the police continued their investigation the following day.

28. This officer was engaged in, amongst other activities, assisting the scientific officer when he examined the scene the day after the fire. There was a long and detailed series of allegations of dishonesty and incompetence on the part of this officer in his handling of the exhibits designated by the scientific officer for retention and more generally in his conduct of the examination of and retention of pertinent exhibits. Obviously,one of the critical things that the police in general and this officer in particular were looking for was evidence of quite how what must have been a large quantity of accelerant (even at an early stage the prime suspect in that regard was isopropyl alcohol) could have been poured on the victim. Pausing there,at the time of the investigation the subject of this ruling, the victim was still alive and in the intensive care unit of the Prince of Wales Hospital. He died about a week later.

29. Given that the accelerant was likely to be a liquid, a concern of the investigation was containers which might have contained the accelerant. A police officer on the day of the fire had noticed a crushed 1.25 L Coke bottle on the floor and he picked that up and placed it on some furniture at the scene. In the result, the exhibits officer found a small amount of liquid in this empty crushed bottle and extracted it into another bottle. Although not strictly relevant for present purposes, the contents of that smaller bottle were examined and isopropyl alcohol was found. The crushed Coca-Cola bottle was also seized by the exhibits officer. There was another Coca-Cola bottle visible in photographs of the kitchen of the premises. It appears that this was never seized. A further Coca-Cola bottle, this one full of isopropyl alcohol was seized. It was never suggested that this further bottle was the bottle which was the source of the accelerant which provided the basis for the fire on the victim.

30. Pertinently for this ruling, there was an examination of the balcony of the flat which had been converted into a room. This room is where the accused and his then long-term girlfriend had been located until a very few minutes before the fire. There was, amongst other things, a further 1.25 L Coca-Cola bottle located on the bedside table next to the bed in that room. That bottle is seen in photographs of the converted balcony and contained a brown liquid and was approximately half full. The photographs were part of the Admitted Facts and the Admitted Facts also included the timeat which the photographs including the one showing the Coca-Cola bottle in the converted balcony were taken. These photographs appear to have been taken well before either the scientific officer or the exhibits officer got to the converted balcony. During the course of the examination of the flat by the scientific officer, that bottle was not amongst those items which were instructed to be seized. The initial testimony of the exhibits officer could be understood as bearing the meaning that the scientific officer gave a positive instruction not to seize the half empty Coke bottle in the converted balcony. In the result, it became apparent that what the exhibits officer actually meant was that no instruction had been given by the scientific officer in connection with that specific Coke bottle and the exhibits officer interpreted the absence of an instruction as an instruction not to seize it. Once this linguistic conundrum was resolved (that took some time) the next thing to occur was that the exhibits officer himself opened the bottle smelled it and then tapped the contents down the sink as he considered this to be of no significance to the investigation. The accused produced during the course of his defence case but not during the course of cross examination of the exhibit officer a photograph showing the empty Coke bottle near the bed. It was the photograph and the timing of the photograph and the circumstances which were the subject of the application by the prosecution.

31. This also came against the background that the accused said at the previous trial before Deputy Judge Stuart-Moore that three Coca-Cola bottles had been tendered. In the trial before me, two were tendered. The first one was the crushed bottle and the other one was a 1.25 L bottle which was almost full of isopropyl alcohol. The allegation implicit in this assertion was that the prosecution in the trial before me had something to hide. An examination of the transcript of the scientific officer at the previous trial and the exhibit list revealed that there was no third Coca-Cola bottle tendered at the last trial but this was an issue which was pressed by the accused until almost the very end of the retrial. It is perfectly understandable that against all this background that the prosecution was anxious that it do something and be seen to do something to rebut the persistent allegations of police and prosecutorial misconduct.

32. The application by the prosecution came against the background of the specific attack in cross examination by the accused of this officer. It was alleged that what he did in making the decision that the brown liquid in the half empty Coke bottle was not relevant to the police investigation was a gross and perfidious breach of police procedure and revealed the officer as an incompetent bumbler or possibly that he was personally complicit in criminal misconduct. Nothing was done by halves so far as the defence case and this aspect was no exception. The prosecution sought to show that the photograph was taken by the exhibits officer and the time of that photograph and the circumstances in which it was taken. The object of this was to answer the allegations of the exhibit officer’s perfidy at least in relation to the emptying of the Coke bottle.

33. The specific application of the prosecution was to recall the exhibits officer to permit him to testify about the circumstances in which the photograph was taken. These circumstances had not been the subject of his testimony before the close of the prosecution case.

34. The principles which inform a ruling as the circumstances when the prosecution might be permitted to reopen its case is that the general rule is that a party may not split his case: R v Rice [1963] 1 QB 857; Shaw v R (1952) 85 CLR 365. The rule is one of practice rather than law: Shaw v R (above); R v Rice (above); R v Francis [1990] 1 WLR 1264; R v Soma (2003) 212 CLR 299, (2003) 140 A Crim R 152. Generally speaking, only in exceptional circumstances would the prosecution be permitted to reopen its case. In this regard, in Shaw v R, (above) Fullagar J considered the exceptional nature of the discretion to permit the prosecution to split its case:

“ … it remains true and important that the Crown should be permitted to adduce evidence after the close of the case for the defence only in exceptional circumstances and when it is reasonably clear that the accused will not be unfairly prejudiced by the admission of the evidence. A wide discretion must be conceded to the judge presiding at the trial, but it should be regarded as limited in that way, and it is to be remembered that the practical effect of evidence on the minds of a jury may differ according as the evidence is adduced in chief or by way of replication. But the discretion ought not to be regarded as further limited or as governed by any rigid rule or formula.”

35. In recent times, the Court of Appeal considered these principles in HKSAR v Tsang Kai On [2017] 2 HKC 178, §18, citing R v Francis (above)with approval. In particular, the passage that the Court of Appeal relied on from R v Francis is: “But lest there be any misunderstanding and lest it be thought we are opening the door too wide, we would echo what was said by Edmund-Davies LJ in the Doran [(1972) 56 Cr App R 429] case at p 437 that the discretion is one which should only be exercised outside the two established exceptions on the rarest of occasions.”

36. There are a multitude of headings for consideration of the exercise of the discretion vested in the court to permit the prosecution to reopen its case. These are probably nothing more than examples of the basic principle. The example which immediately comes to mind is the ex improviso principle. If ever there was a case where the prosecution could not have imagined each of the twists and turns that the defence case took, this might be that case. I refuse the application even though, arguably, the application might have been well-founded under that heading. My basic concern was that even if the prosecution did what it proposed to do the source of the information about the photograph was the already extensively impugned exhibits officer and, in the grand scheme of things, I could not see how this would help the jury resolve the issues before them. I readily accept that it would have provided an element of indication for the prosecution and for the officer concerned. However, that was not a focus of mine in this case. I did not think that the proposed evidence was sufficiently important to permit the prosecution to reopen its case.

POSTSCRIPTS

37. At various stages of the exchanges between the court and the accused he indicated that he was having difficulty understanding what was being said to him, particularly by me and he questioned the skill and professionalism of the court-appointed interpreter. I was not appropriately qualified to judge the skill of the interpreter although his professionalism was manifest throughout. However, it became apparent during the course of the exchanges over the preliminary enquiry that the accused clearly understood the issues and clearly understood the enquiries being made of him to identify the true nature of his contentions. That was clear from the content of his answers as they were interpreted to me. There was nothing that I could see which suggested that the accused did not understand what was going on. Perhaps the best example of the clarity with which this obviously quite intelligent man understood what was going on occurred following the rulings on the two topics pre-trial raised herein when I took the opportunity to explain aspects of court procedure which was relevant to the conduct of the case following the rulings. He made a number of observations which were pertinent and plainly perceptive.

38. Although the position of the accused changed in the course of the trial, in relation to the allegation that the video recorded interviews had been tampered with, the final position of the accused was to accept that they had not been tampered with. The position so far as the complaints by the accused as to the recording of a 999 call made by the accused shortly after the victim was found to be on fire continued to be the subject of complaints of tampering.

	(Andrew Bruce SC)
	Deputy High Court Judge

Mr Michael J B Arthur and Ms Jacqueline H Y Lam, counsel on fiat, for HKSAR

The accused appeared in person

HCCC 78/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 78 OF 2016

________________________

	HKSAR
	v
	NGAI Hon-kwong (魏漢光)

________________________

Before:

Hon Zervos J in Chambers

Date of Hearings:	28 August and 15 September 2017
Date of Decisions:	28 August and 15 September 2017
Date of Reasons for Decisions:	14 December 2017

_____________________________

REASONS FOR REFUSAL OF CHINESE TRIAL

_____________________________

1. There had been a series of hearings in relation to this case since 5 February 2016 when the Court of Appeal ordered that the defendant be retried for murder. Initially the defendant was to be retried before Andrew Chan J and a jury but after nine pre-trial review hearings, the case was relisted on 2 March 2017 and fixed before me and a jury for trial on 30 October 2017. The regrettable state of these proceedings is mainly due to the defendant acting in person, terminating the services of his legal representatives or prevaricating between accepting that the trial will be conducted in English with Chinese translation, and requesting that the trial be conducted in Chinese. There has also been a problem in securing the attendance of a key prosecution witness who is now residing in mainland China.

2. On 28 August 2017, Mr Robert Lee, SC and Mr Randy Shek, who were then acting for the defendant, applied for the retrial of the defendant on a single count of murder to be conducted in Chinese. I refused the application. Soon after my decision, the services of both counsel were terminated by the defendant. Subsequently on 15 September 2017, the defendant renewed the application which he conducted in person. On that occasion, I also refused the application. Not deterred by these previous decisions, the defendant persisted in making the same application in a letter to the Court dated 20 September 2017.

3. Before setting out my reasons for refusing the application, I should set out a brief history of this case.

4. The defendant was arrested and charged for the murder of the deceased which allegedly took place on 29 May 2013. He was brought before the Magistrate’s Court, and on 17 January 2014, he was committed for trial for the offence of murder under section 80C(4) of the Magistrates Ordinance, Cap 227.

5. An indictment was filed on 24 January 2014 with the Court of First Instance in accordance with section 24A of the Criminal Procedure Ordinance, Cap 221. The indictment was amended on 26 August 2014. He was arraigned on that indictment on the first day of trial on 15 October 2014 where he entered a plea of not guilty.

6. After his trial before Deputy Judge Stuart-Moore and a jury on 28 October 2014, he was found guilty of murder by the jury. The defendant appealed his conviction to the Court of Appeal.

7. On 5 February 2016, the Court of Appeal allowed his appeal and quashed his conviction, and ordered that he be retried on a fresh indictment.[1] The Court also ordered that the case be listed before the listing judge for the fixing of trial dates within 28 days.

8. On 16 February 2016, a fresh indictment was filed and on 2 March 2016, the retrial was fixed to commence on 28 October 2016 before Andrew Chan J and a jury. There followed a series of pre-trial review hearings which resulted in the case eventually being relisted for trial on 2 March 2017 before this Court, fixed to commence on 30 October 2017 with a pre-trial review fixed for 7 April 2017.

9. This Court was notified of a section 16 application at the pre-trial review on 7 April 2017 which I fixed for hearing together with directions as to the filing of written submissions by the parties. A hearing of the application was conducted on 26 and 27 July 2017. On 11 August 2017, I handed down my written judgment in which I refused the application.[2]

10. On 21 August 2017, the case was set down for mention where a number of outstanding issues were discussed concerning the trial that was fixed to commence on 30 October 2017. At this hearing, only Mr Shek appeared for the defendant. He noted that the defendant complained that he wanted his trial to be conducted in Chinese because he was unable to follow the interpreter who had been provided. However, he said that at that stage no application for the case to be conducted in Chinese was being made. On this basis, arrangements were made for the previous prosecutor, Mr Michael Arthur, counsel on fiat, to prosecute the case and replace Mr Steven Kwan, counsel on fiat, who had been brought in when the case was to be conducted in Chinese.

11. As I have indicated, Mr Lee together with Mr Shek, on 28 August 2017, made an application for the October trial to be conducted in Chinese. It effectively meant that the case would have to be relisted before a bilingual judge. In short, Mr Lee argued that the defendant did not understand English and that the evidence at trial would be given in the Chinese language. He further argued that the issues at trial were factual, with minor, if any, legal issues requiring resolution. He acknowledged that the application if granted would cause delay because the trial would need to be re-fixed before a bilingual judge.

12. Mr Arthur for the prosecution opposed the application on the basis that it would cause a significant disruption to the proceedings.

13. I refused the application because in my view, in light of the history of the case, any further disruption or delay in the proceedings was contrary to the interests of justice. The previous trial had been conducted before a monolingual judge and no issue was taken at the time, and in fact during the course of the proceedings for the retrial there were occasions when the defendant had accepted that the case would be conducted in English with Chinese translation.

14. It should be noted that a judge or judicial officer has a discretion whether to use English or Chinese or both languages in proceedings, but always giving paramount consideration to the just and expeditious disposal of the proceedings. Such decision of a judge or judicial officer is final. See section 5 of the Official Languages Ordinance, Cap 5. See also Use of Chinese in Court Proceedings Guidelines for Judges and Judicial Officers that have been issued to assist judges and judicial officers in making decisions in relation to the use of official languages in the courts. In paragraph 1, it states that it must always be borne in mind that an accused, a litigant and a witness has the right to use whatever language or dialect he wishes in any court hearing with the assistance of interpretation service, if and when this is required. Other factors and considerations are listed to guide a judge or judicial officer when exercising his discretion as to the use of official languages in the courts. Having regard to the relevant statutory provisions and the guidelines as well as the facts and circumstances of the case, I refused the application.

15. Immediately following my decision, a notice of discharge of legal aid was filed with the Court dated 29 August 2017. The defendant had terminated the services of Mr Lee and Mr Shek.

16. At a pre-trial hearing on 15 September 2017, the defendant confirmed that he had terminated the services of his legal representatives and that he would be conducting his trial in person. He made an application that the trial be conducted in Chinese. He gave three reasons. First, he did not understand English. Secondly, the interpreter had made a lot of mistakes and he did not understand him, and this was important as he needed to respond to expert evidence that would be presented at trial. Thirdly, he was representing himself and he could only do so in Chinese. At this stage, the trial had been fixed for 15 days to commence on 30 October 2017. I refused his application for the trial to be conducted in Chinese.

17. At the hearing, it was noted by Mr Arthur that as the defendant was now representing himself, the prosecution would need to present the evidence by way of strict proof and this involved a large number of witnesses that would most likely take 20 days or more. The defendant was urged to reconsider his position and to obtain legal representation for his trial but he insisted that he would represent himself. The trial dates were vacated. A pre-trial review was re-fixed for 9:30 am on 29 March 2018 and trial dates were re-fixed to commence on 7 May 2018 with 20 days set aside.

18. The defendant has submitted letters dated 7 September and 20 September 2017 in which he confirmed that he would be representing himself and that he wished to apply for his trial to be conducted in Chinese. For the reasons I have already given, and the decisions I have already made, the trial will proceed as listed before me and a jury to be conducted in English with Chinese translation.

	(Kevin Zervos)
	Judge of the Court of First Instance High Court

Mr Michael Arthur and Ms Jacqueline Lam, counsel on fiat, for HKSAR

Mr Robert Lee, SC, leading Mr Randy Shek, instructed by Tang, Wong & Chow, assigned by Director of Legal Aid, for the defendant

[1] HKSAR v Ngai Hon Kwong [2016] 2 HKLRD 149.

[2] HKSAR v Ngai Hon Kwong,HCCC 78/2016, 11 August 2017, unreported, marked “Not to be published until after trial or order of the Court”.

HCCC 78/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 78 OF 2016

________________________

	HKSAR
	v
	NGAI Hon-kwong (魏漢光)

________________________

Before: Hon Zervos J in Court

Dates of Hearing: 26 and 27 July 2017

Date of Judgment: 11 August 2017

________________________

SECTION 16 APPLICATION

________________________

Introduction

1. This is an application by the accused pursuant to section 16 of the Criminal Procedure Ordinance, Cap 221, (the CPO), for his discharge in relation to the count of murder on the indictment laid against him. The circumstances of this application are unusual because it was made after the accused had a previous conviction for murder quashed on appeal by the Court of Appeal, following which it ordered that the accused be retried. See HKSAR v Ngai Hon Kwong [2016] 2 HKLRD 149.

2. The basis of the application, as I understand it, is that it is contended that the Court of Appeal, in scrutinising the evidence at trial, concluded that the testimony of a prosecution witness, on whose evidence the prosecution case rested, was not sufficient to establish to the requisite standard the guilt of the accused on the murder count or any alternative count. It is also contended that the Court went on to find that the evidence given by the accused during trial might be capable of supporting the murder count or the alternative count of manslaughter by gross negligence. It is suggested that the Court ordered that the accused be retried on the basis of his evidence.

3. Briefly, the Court of Appeal by its decision quashed the accused’s conviction for murder because the trial judge did not leave to the jury the alternative count of manslaughter by gross negligence. It was the prosecution case that the accused deliberately doused the deceased with inflammable liquid which he ignited. The deceased sustained severe burns and subsequently died from his injuries. The defence case was that the splashing of the inflammable liquid onto the victim, and the ignition of it, occurred by accident.

Submissions for and against the application

4. Mr Robert Lee, SC, who together with Mr Randy Shek, appear for the accused, argued that if the only evidence capable of supporting a conviction on the murder count or any alternative count could only come from the testimony of the accused, as stated by the Court of Appeal, it follows because the accused is not obliged to give evidence again at his retrial, that the prosecution case must fail to support “a prima facie” case on the murder count or any alternative count. He submitted that the accused should therefore be discharged under section 16.

5. Mr Steven Kwan, who together with Ms Jacqueline Lam, appears for the prosecution, opposed the application on two grounds. First, he contended that this Court no longer has jurisdiction to entertain the application or to order the discharge of the accused under section 16. Secondly, he submitted that the evidence disclosed in the documents is sufficient to satisfy the test under section 16 not to discharge the accused.

The relevant statutory provisions

6. So far as material, section 16 of the CPO reads:

“Discharge of accused after committal without a hearing
(1) Where the accused was committed for trial under section 80C(4) of the Magistrates Ordinance (Cap. 227) or proceedings stand transferred to the court for trial under section 77A(6) of the District Court Ordinance (Cap. 336), the accused may at any time—
(a) if the Secretary for Justice does not institute proceedings within the period specified in section 14(1)(a) or (aa), as the case may be, after the expiration of that period; or
(b) after the filing of the indictment and prior to his arraignment thereon,
apply to a judge for his discharge on the grounds that the evidence disclosed in the documents handed to the court under section 80C(1) of the Magistrates Ordinance (Cap. 227) or, as the case may be, delivered to the Registrar under section 10A, as read with any further evidence the Secretary for Justice has notified the accused he will seek to have admitted at the trial, is insufficient to establish a prima facie case against him for the offence with which he is charged or for any other offence for which he might be convicted upon that charge.
(2) If an application is made under subsection (1) in the circumstances specified in paragraph (a) thereof—
(a) the judge may, of his own motion or on the application of the accused, require the Secretary for Justice to file indictment within such time, and on such terms (if any) as to costs as may be specified in the order;
(b) subject to any order under paragraph (a), the Secretary for Justice may at any time after an application is made under subsection (1), and before the final determination thereof, file an indictment, but the judge may award costs against him if the applicant has incurred any costs by reason of the late filing of the indictment.
(3) The judge may after perusal of the documents and after hearing any representations which the accused and the Secretary for Justice may wish to make, direct that the accused shall not be arraigned on the charge, and direct that he be discharged.
…
(6) Where an indictment has been filed references in this section to the charge shall be construed as references to the charge as set out in the indictment.
…”

7. Section 14(1)(a) and (aa) of the CPO reads:

“(1) The Secretary for Justice, if he sees fit to institute criminal proceedings, shall institute such proceedings in the court against the accused person as to him may seem legal and proper—
(a) in the case of a committal for trial under section 80C(4) of the Magistrates Ordinance (Cap. 227), within 7 days of such committal;
(aa) in any case where pursuant to an order of transfer made under section 77A of the District Court Ordinance (Cap. 336), proceedings stand transferred to the court for trial under subsection (6) of that section, within 21 days of the order; and
…”

8. The procedure to be followed for a section 16 application is set out in Criminal Procedure (Applications Under Section 16) Rules, (Cap 221G).

9. Apart from the power to discharge the defendant by reason of a failure by the Secretary for Justice to institute proceedings within the time specified in section 14(1)(a) or (aa) of the CPO (section 16(1)(a)), the defendant can apply to be discharged “after the filing of the indictment and prior to his arraignment thereon” (section 16(1)(b)). The grounds on which the discharge can be made are that the evidence disclosed in the documents handed to the court under section 80C(1) of the Magistrates Ordinance, Cap 227, (the MO), (in the case of a committal from the Magistrate’s Court), and delivered to the Registrar under section 10A (in the case of a transfer from the District Court), supplemented by any further evidence from the Secretary for Justice, “is insufficient to establish a prima facie case against him for the offence with which he is charged or for any other offence for which he might be convicted upon that charge”.

Approach to a section 16 application

10. The approach to be taken by a court when dealing with a section 16 application was summarised by Stock VP in Secretary for Justice v Tang Sau Ling [2013] 2 HKLRD 174, as follows:

“19. The appropriate approach to s.16 applications may usefully be gleaned from the judgment of Silke V-P in A-G v Phung Van Toan, adopting for the purpose of s.16, the test applied by Kempster JA in A-G v Li Fook Shiu Ronald in relation to s.22 of the Complex Commercial Crimes Ordinance (Cap.394) which empowers an accused at any time before the empanelment of the jury to apply to the judge for his discharge on the ground that the evidence disclosed is insufficient to establish a prima facie case against him for the offence with which he is charged. Kempster JA said, of a judge hearing a s.22 application that:
In relation equally to primary facts and to inferences to be drawn from such facts, his concern is not with present proof to his satisfaction but with potential future proof to that of a jury. Both primary facts and the inferences therefrom are ‘matters generally speaking within the province of the jury’ in the language of R v Galbraith. Both can critically be affected by later evidence or a lack of evidence from the defence. Assuming all proper directions, the test is not what the judge thinks the jury, and still less he, ‘must’ conclude at that moment, but what a jury ‘could, may or might’ properly conclude in the future.
20. Importantly for present purposes, Silke V-P added this:
At the time of this type of application no word of oral evidence has yet been heard. A court faced with such an application is not enjoined to consider the quality of the evidence. To do so would be to usurp the function of the jury.”

Procedural history

11. The accused was arrested and charged for the murder of the deceased which allegedly took place on 29 May 2013. He was brought before the Magistrate’s Court, and on 17 January 2014, he was committed for trial on the offence of murder under section 80C (4) of the MO.

12. An indictment was filed on 24 January 2014 with the Court of First Instance in accordance with section 24A of the CPO. The indictment was amended on 26 August 2014. He was arraigned on that indictment on the first day of trial on 15 October 2014 where he entered a plea of not guilty.

13. After his trial before Deputy Judge Stuart-Moore and a jury on 28 October 2014, he was found guilty of murder by the jury. The accused appealed his conviction to the Court of Appeal.

14. On 5 February 2016, the Court of Appeal allowed his appeal and quashed the conviction, and ordered that the accused be retried on a fresh indictment. The Court also ordered that the case be listed before the listing judge for the fixing of trial dates within 28 days.

15. On 16 February 2016, a fresh indictment was filed and on 2 March 2016, the retrial was fixed to commence on 28 October 2016 before Andrew Chan J and a jury. There followed a series of pre-trial review hearings which resulted in the case eventually being relisted for trial on 2 March 2017 before this Court, fixed to commence on 30 October 2017 with a pre-trial review fixed for 7 April 2017.

16. The Court was notified of the section 16 application at the pre-trial review on 7 April 2017 when it was fixed for hearing with directions as to the filing of written submissions by the parties.

The jurisdictional issue

17. I will deal with the jurisdictional issue first for in my view this application fails on this ground alone. Mr Kwan submitted that there is no jurisdiction to order a discharge of the accused after arraignment on an indictment preferred and filed upon the committal papers. He relied on the wording of section 16 where it states:

“Where the accused was committed for trial under section 80C(4) of the Magistrates Ordinance (Cap 227) …, the accused may at any time … after the filing of the indictment and prior to his arraignment thereon, apply to a judge for his discharge …”

18. He argued that when an accused has been committed for trial under section 80C(4) of the MO, he may make an application under section 16, after the filing of the indictment and prior to his arraignment on that indictment.

19. It is important to note the procedure leading up to a possible section 16 application. When an accused is committed for trial in the Court of First Instance on the basis of a paper committal, that is, without a preliminary inquiry, the committing magistrate is obliged, amongst other things, to inform the accused that he has a right to apply once only to a judge for discharge on the grounds that there is no prima facie case against him.[1] If an accused elects a preliminary inquiry, the committing magistrate is obliged to put the accused upon his trial for an indictable offence if there is sufficient evidence, or “the evidence given raises a strong or probable presumption of the guilt of the accused”. See section 85(2) of the MO.

20. I agree with Mr Kwan that the wording of section 16(1)(b) is critical when considering the jurisdiction of the application. It provides that where an accused was committed for trial under section 80C(4) of the MO, the accused may at any time, “after the filing of the indictment and prior to his arraignment thereon”, apply to a judge for his discharge. Section 80C(4) is, as is explained, the situation where the accused has been committed for trial by paper committal. It seems clear to me that the purpose of section 16 is there to provide an accused the means to apply to be discharged on the grounds of insufficiency of evidence following a paper committal where there has not been a challenge to the evidence in the committal proceedings by way of preliminary inquiry.[2]

21. Section 16(1) further provides that when an application is made to a judge for the accused to discharge, it is “on the grounds that the evidence disclosed in the documents handed to the court under section 80C(1) of the MO or, as the case may be, delivered to the Registrar under section 10A, as read with any further evidence the Secretary for Justice has notified the accused he will seek to have admitted at the trial, is insufficient to establish a prima facie case against him for the offence with which he is charged or for any other offence for which he might be convicted upon that charge.”

22. It is quite clear that the application requires the judge to make an assessment of “the documents”. Those documents are the committal documents as supplemented by additional evidence filed with the Court of First Instance. This was emphasised by the Court of Appeal in Attorney General v Phung Van Toan and Others [1992] 1 HKCLR 56, where Silke VP, giving the judgment of the court, said:

“Under the provisions of s.16 of the Criminal Procedure Ordinance a judge may (sub-s.(3)(1)), after a perusal of “the documents” and having heard representations, direct that an accused should not be arraigned on the charge and further direct that he be discharged. The expression “the documents” can only mean the documents handed to the court under the provisions of s.80(c)(1) of the Magistrates Ordinance to which we have already referred. It is upon these that an accused contends an insufficiency to establish a prima facie case thus triggering off the application under s.16. But s.16(1) also contains the important proviso that “the documents” are to be read “with any further evidence the Attorney General has notified the accused he will seek to have admitted at the trial”.”

23. Following the accused’s committal for trial, an indictment charging him with the offence of murder was filed on 24 January 2014. The indictment was subsequently amended on 26 August 2014. He was arraigned on that indictment on the first day of trial on 15 October 2014 where he entered a plea of not guilty. Prior to the accused’s arraignment, there was no section 16 application. He stood trial for the offence of murder, for which he was convicted but had his conviction quashed on appeal. The Court of Appeal ordered a retrial on a fresh indictment for the offence of murder. This was provided for by sections 83E and 83F of the CPO.

24. In my view, the accused has been previously arraigned on the indictment first filed against him and section 16(1)(b) cannot be invoked. The Court is therefore without jurisdiction.

Whether a successful appeal invalidates the previous indictment

25. I do not agree with Mr Lee’s submission that the quashing of a conviction by the Court of Appeal under section 83 of the CPO renders the filing of the previous indictment and the arraignment thereon, invalid or a nullity.

26. There is simply nothing in the language of section 83 to suggest such a proposition. Section 83(2) and (3) provide that in the case of an appeal against conviction the Court of Appeal shall, if it allows the appeal, quash the conviction, and that such an order, except when under section 83E the appellant is ordered to be retried, “operate as a direction to the court of trial to enter, instead of the record of conviction, a judgment and verdict of acquittal”.

27. It should be noted that section 83E of the CPO empowers the Court of Appeal to make an order that the appellant be retried, if it appears to the Court that the interests of justice so require.

28. It is a requirement under section 83F of the CPO that a person who is to be retried for an offence in pursuance of an order under section 83E shall be tried on a fresh indictment “preferred by direction of the Court of Appeal”.

29. This simply provides another means by which an indictment is preferred against an accused. It does not invalidate the previous indictment or the arraignment thereon, and a fresh indictment preferred by direction of the Court of Appeal is not in contemplation under section 16.

The documents under consideration

30. Mr Lee submitted that the phrase in section 16(1) “on the grounds” allows the accused when making a section 16 application to submit additional material relevant to the interpretation of “the evidence disclosed in the documents”. He also suggested that this was also permitted by the phrase in section 16(3) “after hearing any representations”. He contended that as the accused could make “any representations”, this included submitting legal authority which in this instance included the Court of Appeal’s decision in relation to the accused’s appeal and the quashing of his conviction. He points out that in that decision, the Court analysed the evidence in addressing the ground of appeal which he said scrutinised the “legal quality” of the evidence of the main prosecution witness which should be taken into account by this Court when considering “the evidence disclosed in the documents”.

31. Whilst relevant authority may be submitted to the Court in making representations, it is in relation to “the documents” under consideration. The documents are clearly a reference to the committal papers together with any other evidence filed by the Secretary for Justice as provided under section 16(1).

The New Zealand authority of Bain

32. Mr Lee relied on the New Zealand case of R v Bain, CRI 1994-012-217294, 2 March 2009, where the New Zealand High Court addressed the issue as to whether they could invoke the power under section 347 of the New Zealand Crimes Act 1961 to determine whether the case should proceed or not in the face of an order for retrial by the Privy Council which had allowed the defendant’s appeal and quashed his previous convictions for murder.

33. The case is of no assistance as the statutory provision that the court was concerned with is different to section 16. From my reading of section 347, there is no restriction as to when an application can be made to direct that either no indictment be filed, or if an indictment has been filed, direct that the accused should not be arraigned thereon. In any event, section 347 is not in the terms as contained in section 16.

The evidential issue

34. The main prosecution witness made several statements in which she describes the events surrounding the killing of the deceased. In one passage in a statement made at 00:20 hours on 30 May 2013 (soon after the incident on 29 May 2013), she said:

“Suddenly, I heard [the defendant] shouting, “You mother fucker still sleeping here?” Then I got up and saw [the defendant] holding a transparent plastic bottle in his hands and splashing a liquid onto [the deceased]’s trunk and head twice, causing him wet all over. Then [the deceased] stood up, and [the defendant] lit a fire (but I couldn’t see what sort of lighter [the defendant] used). I saw that [the deceased]’s whole body was immediately set on fire.”

35. In another passage in a statement made on 13 June 2013, she said:

“Later, only when [the defendant] said loudly, ‘Mother-fucking, still sleeping.’ did I wake up. I saw [the defendant] splash [the deceased] with some liquid and then set [the deceased] on fire.

36. She also made another statement on 9 June 2014, where she refers to the incident and that after the defendant had splashed liquid twice onto the deceased, “I saw [the defendant] making a speedy move, reaching his hand out to [the deceased]’s upper body. I then saw [the deceased]’s entire body in flame.”

37. There was evidence that the occupants of the premises regularly took drugs. The accused in his caution statement admitted that he was a regular abuser of drugs and that he had taken Ice on the day of the incident. He explained that he consumed Ice by smoking it which involved lighting the drugs. The prosecution documents include evidence from a forensic scientist who carried out certain scientific tests on the flammable liquid concerned. From his tests, a lit cigarette would not be enough to ignite the flammable liquid. He was of the opinion that it would require a naked flame.

38. Mr Lee concedes that on the evidence of the prosecution documents, there is a prima facie case of murder against the defendant. He relies on the analysis of the evidence by the Court of Appeal to support the section 16 application. I reject this on two bases. First, the Court of Appeal was not considering the prosecution documents as required under section 16. Secondly, the Court of Appeal was discussing the evidence in addressing a specific ground as to whether the alternative count of manslaughter by gross negligence should have been left to the jury. It was not addressing a ground of appeal complaining about the sufficiency of evidence of the prosecution case.

39. McWalters JA, who gave the judgment of the Court of Appeal in Ngai Hon Kwong, indeed scrutinised the evidence given at the trial of the present case, but did so in addressing the ground of appeal whether the trial judge failed to direct the jury that the applicant may be convicted of the lesser offence of manslaughter by gross negligence. He concluded that the alternative verdict of gross negligence manslaughter should have been left to the jury, and in the circumstances of the case, the failure of the judge to do so was a material misdirection. In the preceding paragraph, he said:

“80. This was not a case of whether there was a sufficiency of evidence to ground the alternative verdict. The evidence was clearly there. Whether the jury would find manslaughter or murder would depend on how the jury analysed the evidence and determined what evidence they accepted.”

40. Mr Lee argues that the Court of Appeal concluded that there was a case to put to the jury on the count of murder or the alternative count of manslaughter by gross negligence because of the fact that the defendant had given evidence at trial. In the course of this application, he submitted that the defendant would not be giving evidence at his forthcoming trial, so therefore because of the Court of Appeal’s assessment of the evidence of the main prosecution witness, and the fact that the defendant will not give evidence at his trial, this meant that there was not sufficient evidence to support a conviction for murder or any alternative offence.

41. At trial, the main prosecution witness did not give evidence in the terms as set out in her statements, in that she did not testify as to how the inflammable liquid was ignited and by whom. I note that she was not pressed on the matter and no application was made for the witness to refresh her memory. It is possible that at the retrial, the witness may give evidence in accordance with what she had previously said in her statements which would go further than her testimony at trial. If she does, it may very well be the subject of cross-examination.

42. However, under section 16(1), the test to be applied was what a jury properly directed “could, may or might” properly conclude on an examination of the evidence in the documents placed before this Court. The documents disclosed a prima facie case of murder and also of the alternative count of manslaughter.

Conclusion

43. For the reasons given, this application therefore fails, and is dismissed.

	(Kevin Zervos)
	Judge of the Court of First Instance High Court

Mr Steven MW Kwan and Ms Jacqueline Lam, counsel on fiat, for HKSAR

Mr Robert Lee, SC, leading Mr Randy Shek, instructed by Tang, Wong & Chow, assigned by Director of Legal Aid, for the accused

[1] See section 80C(3)(c) and section 85A(1)(e) of the MO.

[2] Secretary for Justice v Tang Sau Ling [2013] 2 HKLRD 174, [1].

HKSAR v. NGAI HON KWONG

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