Case Detail

HCCC 2/2019

[2023] HKCFI 247

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 2 OF 2019

________________________

BETWEEN
	HKSAR
and
	ADJEI ROBERT (also known as ADJEI KING)	Defendant

________________________

Before: Hon Anna Lai J in Court

Date of Hearing and Decision: 1 June 2022

Date of Handing Down of the Reasons for Decision: 27 January 2023

________________________

REASONS FOR DECISION

________________________

The application

1. This is an application by the defence for a permanent stay of these proceedings on the grounds that a fair trial is not possible as a result of the undue delay and abuse of the process of the court by the prosecution.

2. After hearing submissions on 1 June 2022, I refused the application as I did not find this to be a case in which a fair trial would not be possible or there was an abuse of process which would justify a stay of these proceedings. I will now give my reasons.

Background

3. I respectfully adopted the following background set out by Barnes J in her decision on the defendant’s first application for a stay of these proceedings in February 2021 [1]:

“3.  The defendant faced three counts in an indictment which alleged that he, together with another defendant in the name of Balakrishnan Mahendran (“BM”) and other persons unknown:
(1)  Forcibly taking away a person named Munatsi Kingsley also known as Kingston Fernadez (“Kingsley”) with intent to procure a ransom for the liberation of Kingsley (1^st count”);
(2)  Kidnapping Kingsley, an alternative 2^nd count to the 1^st count; and
(3)  Forcible detention of a person named Babauskis Inars (“Inars”) with intent to procure a ransom for liberation of Inars (3^rd count).
4.  There is no need to go into details of the prosecution case. Suffice it to say that after the alleged offences which took place on 26 September 2017, Kingsley was not available to give evidence, and the main witness for the prosecution was Inars, who is a Latvian living overseas and was visiting Hong Kong at the time of the incident in September 2017.
5.  I will first set out a chronology of this case:
(1)  There were originally two cases involving the two defendants as they were arrested at different times. The indictment against BM was filed on 28 November 2018 whilst the indictment against the defendant was filed on 14 January 2019.  The two cases were consolidated on 30 January 2019, with Case Management Hearing (CMH) set down on 10 April 2019 and trial to run from 22 August - 6 September 2019;
(2)  On 10 April 2019 CMH was held. BM, who was on bail, was allowed to have bail extended. The defendant was remanded in custody. A further CMH was ordered to take place on 28 May 2019;
(3)  By a letter dated 14 May 2019, the CMH was vacated (due to the fact that I was detained overseas for a personal matter);
(4)  By another letter dated 11 June 2019, a further CMH was arranged to take place on 2 July 2019;
(5)  On 2 July 2019, both defendants were present. Trial was ordered to take place as scheduled, with two extra days to be added. BM’s bail was extended and the defendant was again remanded in custody;
(6)  On 21 August 2019 the prosecution wrote to this Court, informing this Court that Inars did not board the flight to Hong Kong as scheduled;
(7)  On 22 August 2019, which was the first day of the trial scheduled, Inars failed to turn up.   The case was adjourned to 4 October 2019 for Mention pending police enquiry on why Inars failed to appear. BM’s bail was again extended.   The defendant was granted bail on this occasion;
(8)  On 4 October 2019, BM failed to appear. Warrant of Arrest was issued against BM with bail money estreated. Counsel for BM was discharged. On that occasion the prosecution informed this Court that Inars failed to turn up due to the unstable social condition in Hong Kong. This Court directed the prosecution to ascertain the length of the trial and whether to proceed against the defendant on his own.   The trial dates were vacated and the case was sent to the Listing Judge for re-listing;
(9)  On 21 November 2019, parties were informed another CMH would take place on 9 March 2020, with new trial dates fixed from 11 June 2020 to 24 June 2020;
(10)  Due to the General Adjournment Period (GAP) imposed by the Judiciary as a result of the Covid-19 pandemic, the case was re-scheduled as follows: CMH scheduled on 9 March 2020 was relisted to 27 March 2020, then was again relisted to 16 April 2020;
(11)  On 16 April 2020, CMH was held.   BM was still at large. The prosecution informed this Court that Inars, who was willing to testify, was in India and as a result of the “lockdown” there he could not come to Hong Kong. Due to the uncertainty, the trial dates were vacated. The prosecution informed this Court that the trial against the defendant would proceed in any event. Trial was to be re-fixed and the defendant’s bail was extended;
(12)  On 8 May 2020, the case was fixed for Mention on 14 December 2020 with trial dates fixed to take place on 15, 18-22, 25-28 January 2021;
(13)  On 14 December 2020, BM was still at large. The prosecution informed this Court that they will apply for the trial to take place against both defendants, in BM’s absence. This Court fixed a hearing for submissions on 7 January 2021;
(14)  On 7 January 2021, after hearing submissions, I refused the prosecution’s application to have the trial against BM in absentiatogether with the defendant on the grounds that it would be unfair to the defendant to do so. I then indicated that a trial of BM on his own in his absence would be allowed.  (A separate judgment will be handed down in relation to that application in due course);
(15)  On 15 January 2021, the first day of trial against the defendant, Inars was already in Hong Kong and ready to give evidence. The trial against the defendant could not take place due to the sudden unavailability of the Ewe/English interpreter the Judiciary has engaged to translate for the defendant. The Court was informed that that particular interpreter was the only Ewe/English interpreter available for the job at the time; and that, due to the Covid-19 situation and the resultant “lockdown” in many countries, it would have been difficult to locate another Ewe interpreter in the near future;
(16)  Faced with such a situation, I then decided to conduct the trial of BM in absentia, while Inars was in Hong Kong, to start on Monday 18 January 2021;
(17)  In the afternoon of 15 January 2021, this Court was informed that an alternative Ewe interpreter, who had assisted the Judiciary before, was located and the new interpreter was willing to act as an interpreter in this case;
(18)  On Monday 18 January 2021, it was discovered that the Ewe dialect spoken by the new interpreter was not the same as the one spoken by the defendant.   Faced with such a situation, this Court had no alternative but to proceed with the trial of BM in absentia, starting from Tuesday 19 January 2021;
(19)  The prosecution asked for a further adjournment of the trial of the defendant, while the defence indicated that they would make an application to stay the proceedings.   This Court then fixed a date for the hearing of the application.   On the same day (ie 18 January 2021) the defendant filed a Motion to permanent stay the proceedings against him.”

4. On 19 January 2021, the trial of BM (the other defendant) in absentia commenced with Inars testified for the prosecution. The jury unanimously convicted BM of the 2^nd and the 3^rd counts. BM was sentenced to a total of 17 years’ imprisonment [2].

5. On 29 January 2021, the defendant’s first application for stay of the proceedings was heard and refused by Barnes J.

6. At the Mention hearing on 23 November 2021, the defence confirmed the suitability of a new Ewe interpreter. The defendant’s trial was subsequently fixed to commence on 1 June 2022.

7. On 20 April 2022, CMH was held. The prosecution informed the Court that Inas, who was willing to testify, was unable to travel to Hong Kong in June 2022 due to the then prevailing government policy concerning the Covid-19 pandemic. The prosecution asked for a further adjournment of the trial, while the defence indicated that they would make a second application to stay the proceedings.

8. On 23 April 2022, the defence filed a Motion to apply for a permanent stay of these proceedings.

Grounds of the application for stay

9. Mr Andrew Raffell, counsel for the defendant, provided the following grounds in the Notice of Motion:

(1)  Excessive delay caused by abuse of process.
(2)  Unfairness and unjust treatment of the defendant because of the action and/or inactions of the prosecution in that they failed to make arrangements for the witness lnars to attend court on the 1 June 2022 (which date was set on the 8 December 2021).
(3)  Failure to disclose to the court and the defence until a CMH on 20 April 2022 that Inars would not attend for the trial.
(4)  Premature vacating of the date set for trial without reference to the defence in good time and leading to the defence objections being raised extempore without adequate or proper time to prepare.
(5)  Failure of the prosecution to provide details of what (if any) attempts had been made to ensure lnars attendance.   When such attempts had been made.   When the prosecution became aware that he would not attend.   Why they had failed to inform the court and the defence in good time.
(6)  A failure to comply with Barnes J’s orders on 16^h April 2020 and 29 January 2021 that no more adjournments would be allowed.

The law and applicable principles

10. There is no dispute about the applicable law. I am grateful to Mr Ken Ng, counsel prosecuting on fiat, who has set out the relevant principles in his written submission as follows [3]:

“The Law-The scope of power of the Stay Application
10.  In HKSAR v Ng Chun To Raymond [4], by referring to the Final Appeal case in HKSAR v Lee Ming-tee [5], the Court of Appeal reiterated that the court’s discretion to exercise the Stay only justified in exceptional circumstances.  Court will not normally intervene the right of Prosecution to demand a verdict except that a fair trial is impossible or in rare cases, the trial of the accused would be an affront to the court’s sense of justice and propriety.  Most important of all, the burden is on the accused to show on a balance of probabilities that no fair trial can be held.  At para.  84:
“The circumstances in which, in the exercise of a court’s discretion, a stay of proceedings will be justified are exceptional.  Those circumstances are explained by Ribeiro PJ in HKSAR v Lee Ming Tee & Anor.  ‘In general,’ he said, ‘if a prosecution is brought, the court’s duty is to try the case’; since ‘generally speaking a prosecutor has as much right as a defendant to demand a verdict ...  on an outstanding indictment, and where either demands a verdict a judge has no jurisdiction to stand in the way of it.  But in exercise of its inherent power to prevent an abuse of its own process, the court has jurisdiction to stay criminal proceedings in two circumstances:
(1) where, notwithstanding the remedial measures which are available to a court to ensure a fair trial, the circumstances are such that ‘a fair trial for the accused is found to be impossible and continuing the prosecution would amount to an abuse of process.’ (emphasis added) That is because ‘the continuation of processes which will culminate in an unfair trial can be seen as a ‘misuse of the court process’ which will constitute an abuse of process because the public interest in holding a trial does not warrant the holding of an unfair trial.’ The burden is on the accused to show on a balance of probabilities that no fair trial can be held.  The basis upon which such applications tend to be mounted include delay, unfair methods of investigation, and pre-trial publicity; and
(2)  in rare cases where, even though a fair trial is available, the court is prepared to grant a permanent stay because there has been an abuse of power of a kind that renders the trial of the accused an affront to the court’s sense of justice and propriety.   An example is the refusal of a court to exercise jurisdiction over an accused who has been unlawfully abducted from another jurisdiction.”
11.  In R vHumphreys [6]
“........a judge has not and should not appear to have any responsibility for the institution of prosecutions; nor has he any power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought.  It is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene.”
12.  In R v Derby Crown Court [7],
“The ultimate objective of this discretionary power is to ensure that there should be a fair trial according to law, which involves fairness both to the defendant and the prosecution.  for.  as Lord Diplock said in R v SANG (1979) 69 Cr.App.R.  282,290; [1980] A.C.  402, 437: ‘...  the fairness of a trial ...  is not all one-sided; it requires that those who are undoubtedly guilty should be convicted as well as that those about whose guilt there is any reasonable doubt should be acquitted.’ ”
The Law-Abuse of process making a fair trial impossible: Delay
13.  The Law in relation to the court's exercise of its power to stay for the reason of delay has been reviewed and approved by Privy Council in Tan v Cameron [8]. It was held:
“The discretion to prevent a prosecution from going to trial should be very sparingly exercised, even where the delay can be said to be unjustifiable, and more so where the prosecution cannot be faulted.  No stay should be imposed unless the defendant shows on the balance of probabilities that owing to the delay he will suffer prejudice to the extent that no fair trial can be held.”
“Moreover, there is no presumption of prejudice in a long delay, and consequently no shifting of the burden of disproving prejudice to the prosecution.  The burden remains with the defendant, and a long delay is only one factor in determining whether or not prejudice has been caused.”
14.  In R v William Hung [9], it was a Stay application in which the applicant argued that there was, inter alia, an undue delay in breach of BOR Article 11(2)(c).   In refusing the Stay application, the Court held that:
“When considering whether or not the delay was undue the court would consider all relevant circumstances but in particular (i) the length of the delay; (ii) the reasons for the delay; (iii) the attitude of the parties; and (iv) any prejudice to the accused.” [10]
When considering the fourth factor, the court went on to say that, “It follows, therefore, that in any determination of the reasonableness of the length of that delay, it must be considered whether in the end the delay has rendered or might render any subsequent trial unfair.” [11]
The court stated that, “A balance must be maintained between the rights of individuals and the overall interest of the community.  There is a community interest in bringing offenders to trial and in having criminal proceedings conducted in an efficient and fair manner.   Nothing more likely to interfere with the community’s respect for the system of criminal justice than to see the criminal process comprised, and transgressors of the law freed, untried, through institutional shortcomings.” [12]
The court further added that, “As well as which, it seems to me, that community interest will grow commensurately with the seriousness of the offence, and therefore the nature of the offence and its significance within the particular jurisdiction will require consideration along with the other factors.   However I also suggest that the weight to be given to this factor must diminish the longer the delay and the less justification the Crown can give for it, since what then needs to be redressed is the balance in favour of the individual’s right.” [13]
Finally, the court refused the stay and said this, “I must therefore, decide, whether in light of all these relevant considerations what I regard as a prima facie excessive delay [14] has in fact infringed the defendant’s right to trial without undue delay.   I do not think so.” [15]
…
Grounds of the Opposition for the Stay
…
19.  …According to Archbold: “Where the prosecution is not at fault in causing the delay, a stay should rarely be granted.” [16]
…
21.  According to Tan v Cameron as stated at para 13 above, delay is not presumed to be a prejudice to the Defendant. It is the onus on the defendant to prove on the balance of probabilities that owing to delay, he will suffer prejudice to the extent that no fair trial can be held.  …
22.  In R v Dutton [17], it was held that “...a stay should only be employed in exceptional circumstances.   In assessing whether there was likely to be serious prejudice, the power of the judge to regulate the admissibility of evidence, and the trial process, which should ensure that all relevant factual issues arising from delay would be placed before the jury together with the power of the judge to give appropriate directions should be borne in mind.” … ”

Submissions of the defence

11. Mr Raffell submitted that this application was based on undue delay and abuse of the process of the court by the prosecution. He pointed out that the prosecution have had since 8 December 2021 to make arrangements for the overseas witness Inars to come to Hong Kong. The prosecution’s late application to vacate the trial dates at the CMH was arguably an abuse of process as no warning was given to the defence, and the court was forced into making a preemptory decision to allow the application to vacate.

12. Mr Raffell referred to the Basic Law Article 87 and BOR Article 11(2)(c) which give defendants the right to a fair trial without undue delay, and submitted that it would be in the public interest and the interests of justice and fairness that a defendant should not have a serious charge hanging over him for a long delayed period. Though part of the delay had been caused by the Covid-19 pandemic, he said the latest delay had been caused by the inaction of the prosecution and the reluctance of Inas to return to Hong Kong. There was no strong indication that the trial would ever happen, and he considered that it was highly unlikely that Inas would come to give evidence at the future trial.

13. Mr Raffell also criticized the strength of the prosecution evidence. He submitted that the CCTV pictures were poor, and the identification of the defendant was made by the witness in very trying circumstances. He denied that the phone (containing incriminating evidence against the defendant) belonged to the defendant.

14. Mr Raffell submitted that a fair trial would not be possible because of the passage of time. As a result of the unacceptable delay, Inars could not be effectively cross-examined and the defendant had no realistic prospect of calling witnesses who might have been able to assist his defence. Mr Raffell also relied on the case of R v Li Wing Tat[18] to argue that the unfair behaviour on the part of the prosecution itself could amount to an abuse of process even where a fair trial might be possible. He invited this Court to draw the inference of prejudice from the extreme delay of the defendant’s trial.

Submissions of the prosecution

15. Mr Ng pointed out that the 2019 trial was vacated because Inars found it unsafe to come at the time because Hong Kong was socially unstable. The 2020 trial was vacated because Inars was in India and there was a lockdown there due to the Covid-19 pandemic. In January 2021, Inars had arrived in Hong Kong and was ready to testify at the joint trial of BM and the defendant. The defendant’s trial was severed and adjourned due to the sudden unavailability of the Ewe interpreter. Inars was required to leave Hong Kong immediately after giving evidence in BM’s trial to comply with the conditions allowing him to enter Hong Kong under the then prevailing health policy. Since then the Judiciary was trying hard to look for a suitable Ewe interpreter. The current interpreter was not found until 23 November 2021, after which the defendant’s trial was fixed to commence on 1 June 2022.

16. Mr Ng submitted that the June 2022 trial was vacated through no fault of all parties including Inars. Delay due to the Covid-19 situation and the busy court schedule was not uncommon. At the time of the CMH on 20 April 2022, the fifth wave of Covid-19 had been hitting Hong Kong seriously. There was a ban for all non-HK residents to travel to Hong Kong which affected the availability of Inars in the upcoming trial. With effect from 1 May 2022, non-HK residents were allowed to travel to Hong Kong provided that they were fully vaccinated and stayed in Designated Quarantine Hotel. However, the prosecution was informed that Inars could not be vaccinated because he was suffering from diabetes. Efforts to secure his attendance were made including the application for exemption from the relevant authorities. CCTV link was not a feasible option without MLA. Given the dynamic situation of the Covid-19 pandemic and the rapidly changing government policies, the prosecution had tried their best to secure Inars’ attendance from overseas and to keep the defence informed of the latest progress. Mr Ng stressed that Inars has indicated his willingness to come to Hong Kong to testify.

17. Mr Ng emphasized the seriousness of the charges faced by the defendant, and submitted that the evidence against him was strong: the face of the defendant was clearly shown in some of the CCTV footages depicting the events of the kidnapping; in the identification parade Inars positively identified the defendant as one of Kingsley’s kidnappers, and one of the persons who guarded Inars in the detention area; forensic examination of the defendant’s phone revealed evidence that connected him to the kidnappers and the receipt of the ransom. In the circumstances the individual rights of the defendant should yield to the interest of the community to have a trial against him.

18. Mr Ng submitted that the defendant was on bail since 22 August 2019, the first day of the 2019 trial when Inars failed to turn up. He also asked this Court to consider the fact that the trial judge could give proper directions to the jury to address the issues arising from the delay.

My consideration

19. The staying of criminal proceedings would only be justified in highly exceptional circumstances. The ultimate objective of the discretionary power to stay the proceedings is to ensure that there should be a fair trial according to law, which involves fairness both to the defendant and the prosecution [19]. In general, if a prosecution is brought, the court’s duty is to try the case. But in exercise of its inherent power to prevent an abuse of its own process, the court has jurisdiction to stay criminal proceedings in two circumstances [20]:

(1) Where, notwithstanding the remedial measures which are available to a court to ensure a fair trial, the circumstances are such that a fair trial for the defendant is found to be impossible and continuing the prosecution would amount to an abuse of process. The burden is on the defendant to show on a balance of probabilities that no fair trial could be held. A long delay is only one factor in determining whether or not prejudice to the extent that no fair trial can be held has been caused.
(2) In rare cases where, even though a fair trial is available, there has been an abuse of power of a kind that rendered the trial of the defendant an affront to the court’s sense of justice and propriety. The cases in this category would be rare since the public interest lay in the guilt or innocence of the defendant being fairly and openly determined at trial. Powerful reason must exist for this to be displaced. The ultimate question is whether all the circumstances specific to the particular case led to the conclusion that proceedings with a trial of the defendant offended the court’s sense of justice and propriety or that public confidence in the criminal justice system would be undermined by proceedings with it or whether it is in the interests of justice that the defendant be tried for the offence with which he was charged.

20. Having considered the historical development of this case and the reasons for the delay, I was of the view that the delay was caused by unexpected events beyond the control of the prosecution. Both the defendant and the prosecution were not at fault in causing the delay. There was no misconduct on the part of the prosecution including the overseas witness Inars.

21. In assessing the impact of the delay on the fairness of the defendant’s trial, I have had regard to the following matters:

(1)  The adjournments were not due to any act or omissions by the prosecution or the defendant.
(2)    The prosecution was ready to proceed in January 2021. The overseas witness Inars was ready to testify at the scheduled trial, indicating that he is someone who would keep his promise to testify.
(3)    Inars has been in contact with the prosecution and has indicated his willingness to come to testify in the future trial.
(4)  As rightly pointed out by Barnes J in her decision on the first stay application, “although the incident happened in 2017, this is not a case that would rely purely on memories of witnesses as there are various CCTV footages which captured the event. The prosecution also relies on photographs retrieved from the mobile phone of BM, a person alleged to have acted in concert with the defendant to commit the offences.” [21]
(5)  The public interest of ensuring those defendants charged with grave crimes should be tried.
(6)  The defendant was ready to proceed with the trial in January 2021 but for the unexpected unavailability of the Ewe interpreter. He would receive due assistance from the same instructing solicitors in the future trial.
(7)  The defendant, a torture claimant who came to Hong Kong in 2003, has been granted bail and is only required to report once every fortnight.
(8)  Any disadvantage arising from the delay could be redressed by the cross-examination of the prosecution witnesses and appropriate directions by the judge to counteract the possible adverse effects that the delay could have occasioned.

22. I did not find this to be a case in which a fair trial would not be possible. The defendant’s trial has not been compromised, and there was no abuse of power which would render the trial an affront to the court’s sense of justice and propriety.

23. For these reasons, I concluded that this was not a proper case to stay these proceedings.

Conclusion

24. The defence application to stay the proceedings was refused.

	(Anna Lai)
	Judge of the Court of First Instance
	High Court

Mr Ken Ng Kin-man, Counsel-on-fiat of the Department of Justice, for the Prosecution

Mr Andrew Raffell, Counsel instructed by Messrs Morley Chow Seto, assigned by DLA, for the Defendant

[1] Reasons for Decision in HKSAR v ADJEI ROBERT (also known as ADJEI KING) HCCC 2/2019, [2021] HKCFI 266 dated 8 February 2021, at paragraphs 3-5

[2] HCCC 2A/2019, date of trial on 19 January – 1 February 2021

[3] “Prosecution’s Skeleton Argument in Opposition to the Stay Application of Defence” dated 16 May 2022, at paragraphs 10-22

[4] HKSAR v Ng Chun To Raymond, [2013] 5 HKC 390, at para 84

[5] HKSAR v Lee Ming-tee, (2001) 4 HKCFAR 133 at 148F

[6] R v Humphreys,[1977] AC 1 at 46D

[7] R v Derby Crown Court, (1984) Cr App R 164 at 169

[8] Tan v Cameron, [1992] 2 HKLR 254, in the holdings 3 and 4

[9] R v William Hung, [1992] 2 HKCLR 90, p 113 line 5-7

[10] Ibid holding 2, p 108, lines 4-10

[11] Ibid p 111, lines 20-22

[12] Ibid p 112, line 45 – p 113, line 4

[13] Ibid p 113,lines 5 to 10

[14] The defendant was remanded in custody for 526 days relating to a drugs case. Ibid p 113, line 20

[15] Ibid p 113, lines 11 to 13

[16] Archbold Hong Kong 2022, p 323 §4-53 at third paragraph

[17] R v Dutton, [1994] Crim LR 910

[18] [1991] 1 HKLR 731, Magistracy Appeal No 1286 of 1990

[19] R v Derby Crown Court, (1984) Cr App R 164

[20] Tan v Cameron [1992] 2 HKLR 254, HKSAR v Lee Ming Tee & Another (2001) 4 HKCFAR 133, and HKSAR v Ng Chun To Raymond & Anor [2013] 5 HKC 390

[21] [2021] HKCFI 266, at paragraph 21

HCCC 2/2019

[2021] HKCFI 300

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 2 OF 2019

________________________

BETWEEN
	HKSAR
	v
	BALAKRISHNAN MAHENDRAN	1st Defendant
	ADJEI ROBERT (also known as ADJEI KING)	2nd Defendant

________________________

Before:

Hon Barnes J in Court

Date of Hearing and Decision:	7 January 2021
Date of Handing Down of the Reasons for Decision:	8 February 2021

________________________

REASONS FOR DECISION

________________________

Charges

1. BALAKRISHNAN MAHENDRAN (D1) was originally the defendant in HCCC 362/2018 and ADJEI ROBERT (also known as ADJEI KING) (D2) was the defendant in HCCC 2/2019. The two cases were consolidated with the case number of HCCC 2/2019 being adopted.

2. Both defendants were jointly charged with the following offences:

(1).  forcibly taking away a person named Munatsi Kingsley also known as Kingston Fernadez (“Kingsley”) with intent to procure a ransom for the liberation of Kingsley (1^st count);
(2).  kidnapping Kingsley (2^nd count, alternative to 1^st count); and
(3).  forcible detention of a person named Babauskis Inars (“Inars”) with intent to procure a ransom for the liberation of Inars (3^rd count).

Chronology

3. There were originally two cases involving the two defendants as they were arrested at different times. The indictment against D1 was filed on 28 November 2018 whilst the indictment against D2 was filed on 14 January 2019. The two cases were consolidated on 30 January 2019, with Case Management Hearing (CMH) set down on 10 April 2019 and trial to run from 22 August – 6 September 2019.

4. On 10 April 2019 CMH was held. D1, who was on bail, was allowed to have bail extended. D2 was remanded in custody. A further CMH was ordered to take place on 28 May 2019.

5. By a letter dated 14 May 2019, the CMH was vacated (due to the fact that I was detained overseas for a personal matter).

6. By another letter dated 11 June 2019, a further CMH was arranged to take place on 2 July 2019.

7. On 2 July 2019, both defendants were present. Trial was ordered to take place as scheduled, with two extra days to be added. D1’s bail was extended and D2 was again remanded in custody.

8. On 21 August 2019 the prosecution wrote to the Court, informing the Court that Inars did not board the flight to Hong Kong as scheduled.

9. On 22 August 2019, which was the first day of trial scheduled, Inars failed to turn up. The case was adjourned to 4 October 2019 for Mention pending police enquiry on why Inars failed to appear. D1’s bail was again extended. D2 was also granted bail on this occasion.

10. On 4 October 2019, D1 failed to appear. Warrant of Arrest was issued against him with bail money estreated. Counsel for D1was discharged. On that occasion the prosecution informed the Court that Inars failed to turn up due to the unstable social condition in Hong Kong. The Court directed the prosecution to ascertain the length of the trial and whether to proceed against D2 on his own. The case was passed on to the Listing Judge for re-listing.

11. On 21 November 2019, parties were informed another CMH would take place on 9 March 2020, with new trial dates from 11 June 2020 to 24 June 2020.

12. Due to the General Adjournment Period (GAP) imposed by the Judiciary as a result of the Covid-19 pandemic, the case was re-scheduled as follows: CMH scheduled on 9 March 2020 was relisted to 27 March 2020, then relisted again to 16 April 2020.

13. On 16 April 2020, CMH was held. D1 was still at large. The prosecution informed the Court that Inars, who was willing to testify, was in India and due to the lockdown could not come to Hong Kong. Due to the uncertainty, the trial dates were vacated. The prosecution informed the Court that the trial against D2 would proceed in any event. The defendant’s bail was extended.

14. On 8 May 2020, the case was fixed for Mention on 14 December 2020 with trial dates fixed on 15, 18-22, 25-28 January 2021.

15. On 14 December 2020, D1 was still at large. The prosecution indicated to the Court that an application would be made to proceed the trial of D1 in his absence. The Court then fixed 7 January 2021 for submissions.

The application

16. After hearing submissions on 7 January 2021, I refused the application of the prosecution to have the trial of D1 in absentiatogether with D2 on the ground that it would be unfair to D2, indicating that I was prepared to have the trial of D1 in absentia. I will now give my reasons.

The law and applicable principles

17. There is really no dispute between parties as to the law and applicable principles. I am grateful to Mr Ken Ng, counsel prosecuting on fiat, who has set out the relevant legal principles[1] in his written submission and I will adopt them here :

“The Legal principles for Trial in absentia
10. In the case of House of Lords in R V Jones [2003] 1 AC, also reported in [2002] 2 CR. App R 9, the question before the House, certified by the Court of Appeal (Criminal Division) as one of general public importance, is this:
‘Can the Crown Court conduct a trial in the absence, from its commencement, of the defendant?’
11. In the case of HKSAR VKWANWAI KEUNG & ORS. CACC 259/2011 (Judgment only available in Chinese) at para. 6 cited with approval of the principles enunciated by Lord Bingham in the said case of RVJones, at paras. 6,10,11&12. They are extracted and repeated below:
‘6. For very many years the law of England and Wales has recognised the right of a defendant to attend his trial and, in trials on indictment, has imposed an obligation on him to do so. The presence of the defendant has been treated as a very important feature of an effective jury trial. But for many years problems have arisen in cases where, although the defendant is present at the beginning of the trial, it cannot (or cannot conveniently or respectably) be continued to the end in his presence. This may be because of genuine but intermittent illness of the defendant … or misbehaviour .....; or because the defendant has voluntarily absconded. In all these cases the court has been recognised as having a discretion, to be exercised in all the particular circumstances of the case, whether to continue the trial or to order that the jury be discharged with a view to a further trial being held at a later date. .... But it is of course a discretion to be exercised with great caution and with close regard to the overall fairness of the proceedings; a defendant afflicted by involuntary illness or incapacity will have much stronger grounds for resisting the continuance of the trial than one who has voluntarily chosen to abscond.’[2]
‘10. In turning to general principles, Ifind it hard to discern any principled distinction between continuing a trial in the absence, for whatever reason, of a defendant and beginning a trial which has not in law commenced. If, as is accepted, the court may properly exercise its discretion to permit the one, why should it not permit the other? It is of course true that if a trial has begun and run for some time, the inconvenience to witnesses of attending to testify again on a later occasion, and the waste of time and money, are likely to be greater if the trial is stopped than in the case of a trial that has never begun.But these are matters which, however relevant to the exercise of discretion, provide no ground for holding that a discretion exists in the one case and not in the other ………..If a criminal defendant of full age and sound mind, with full knowledge of a forthcoming trial , voluntarily absents himself, there is no reason in principle why his decision to violate his obligation to appear and not to exercise his right to appear should have the automatic effect of suspending the criminal proceedings against him until such time, if ever, as he chooses to surrender himself or is apprehended.’[3] (emphasis added)
‘11. ……..His legal representatives would be likely to regard their retainer as terminated by his conduct in absconding, .… Thus there would be no cross–examination of prosecution witnesses, no evidence from defence witnesses, and no speech to the jury on behalf of the defendant. The judge and prosecuting counsel, however well-intentioned, could not know all the points which might be open to the defendant. …………..The answer to this contention is, in my opinion, that one who voluntarily chooses not to exercise a right cannot be heard to complain that he has lost the benefits which he might have expected to enjoy had he exercised it.[4] If a defendant rejects an offer of legal aid and insists on defending himself, he cannot impugn the fairness of his trial on the ground that he was defended with less skill than a professional lawyer would have shown. If, after pull professional advice, he chooses not to exercise his right to give sworn evidence at the trial, he cannot impugn the fairness of his trial on the ground that the jury never heard his account of the facts. If he voluntarily chooses not to exercise his right to appear, he cannot impugn the fairness of the trial on the ground that it followed a course different from that which it would have followed had he been present and represented.’
‘12. Considerations of practical justice in my opinion support the existence of the discretion which the Court of Appeal held to exist. To appreciate this, it is only necessary to consider the hypothesis of a multi-defendant prosecution in which the return of a just verdict in relation to any and all defendants is dependent on their being jointly indicted and jointly tried. On the eve of the commencement of the trial, one defendant absconds. If the court has no discretion to begin the trial against that defendant in his absence, it faces an acute dilemma: either the whole trial must be delayed until the absent defendant is apprehended, an event which may cause real anguish to witnesses and victims; or the trial must be commenced against the defendants who appear and not the defendant who has absconded. This may confer a wholly unjustified advantage on that defendant. …… But a system of criminal justice should not be open to manipulation in such a way.’[5]
12. In an earlier case of UK Court of Appeal in R V Hayward [2001] QB 862, at para. 22 setting out the principles to guide the English courts in relation to the trial of a defendant in his absence. The principles are repeated below:
1. A defendant has, in general, a right to be present at his trial and a right to be legally represented.
2． Those rights can be waived, separately or together, wholly or in part, by the defendant himself. They may be wholly waived if, knowing, or having the means of knowledge as to, when and where his trial is to take place, he deliberately and voluntarily absents himself and/or withdraws instructions from those representing him. They may be waived in part if, being present and represented at the outset, the defendant, during the course of the trial, behaves in such a way as to obstruct the proper course of the proceedings and/or withdraws his instructions from those representing him.
3. The trial judge has a discretion as to whether a trial should take place or continue in the absence of a defendant and/or his legal representatives.
4. That discretion must be exercised with great care and it is only in rare and exceptional cases that it should be exercised in favour of a trial taking place or continuing, particularly if the defendant is unrepresented.
5. In exercising that discretion, fairness to the defence is of prime importance but fairness to the prosecution must also be taken into account. The judge must have regard to all the circumstances of the case including, in particular:
(i) the nature and circumstances of the defendant’s behaviour in absenting himself from the trial or disrupting it, as the case may be and, in particular, whether his behaviour was deliberate, voluntary and such as plainly waived his right to appear;
(ii) whether an adjournment might result in the defendant being caught or attending voluntarily and/or not disrupting the proceedings;
(iii) the likely length of such an adjournment;
(iv) whether the defendant, though absent, is, or wishes to be, legally represented at the trial or has, by his conduct, waived his right to representation;
(v) whether an absent defendant’s legal representatives are able to receive instructions from him during the trial and the extent to which they are able to present his defence;
(vi) the extent of the disadvantage to the defendant in not being able to give his account of events, having regard to the nature of the evidence against him;
(vii) the risk of the jury reaching an improper conclusion about the absence of the defendant;
(viii) the seriousness of the offence, which affects defendant, victim and public[6];
(ix) the general public interest and the particular interest of victims and witnesses that a trial should take place within a reasonable time of the events to which it relates;
(x) the effect of delay on the memories of witnesses;
(xi) where there is more than one defendant and not all have absconded, the undesirability of separate trials, and the prospects of a fair trial for the defendants who are present.
6. If the judge decides that a trial should take place or continue in the absence of an unrepresented defendant, he must ensure that the trial is as fair as the circumstances permit. He must, in particular, take reasonable steps, both during the giving of evidence and in the summing up, to expose weaknesses in the prosecution case and to make such points on behalf of the defendant as the evidence permits. In summing up he must warn the jury that absence is not an admission of guilt and adds nothing to the prosecution case.”

Submission of the prosecution

18. Mr Ng submitted that the key witness (Inars), who was overseas, had expressed his willingness to come to Hong Kong to testify. Exemption of the mandatory 14 days’ quarantine period has been successfully obtained from the Department of Health so that Inars could give evidence immediately 2 days after his arrival. It was submitted that Inars may not be willing to come to Hong Kong to testify again should there be another trial for D1.

19. As D2 was present for the trial, there was no reason for D1 to be allowed to manipulate the situation and had an unjustified advantage over D2. To do otherwise would encourage other defendants to behave in a similar fashion, Mr Ng submitted.

20. D1 has been placed on the wanted and watched list and he was still at large. There was no certainty as to when he could be apprehended. Since the incident happened in 2017, memories of witnesses may be further faded if there was further delay. A separate trial for D2 pending the apprehension of D1 will defeat the interest of justice.

21. Since D1 deliberately failed to turn up in court and to contact his own lawyer, he could not be heard to complain later that the trial proceeded in his absence and without legal representation. There is no reason why the trial should not commence in D1’s absence and tried together with the defendant, provided the trial is conducted fairly.

22. Mr Ng submitted that taking all the relevant factors into consideration, the court’s discretion should be exercised in favour of ordering a trial in absentia against D1.

Submission of D2

23. Mr John McNamara, counsel for D2, submitted that D1 had disappeared for 18 months and was still at large. Placing D1 on the wanted list or the watched list did not help as D1 would not be trying to enter into Hong Kong. There was no real prospect of D1 being apprehended to face trial.

24. The evidence against D1 mainly come from Inars and the police officers who had arrested him. In D1’s video-recorded interviews he made many allegations regarding the alleged involvement of D2. When D1 was present before this Court and was legally represented, his counsel has informed this Court that the admissibility of the video-recorded interviews would be objected to.

25. Should a joint trial take place in the absence of D1, D1’s video-recorded interviews would be before the jury. Although the jury would be warned against using the allegations against D2 contained in D1’s video-recorded interviews, the prejudice would be significant and could well deprive D2 of a fair trial. In a trial against D2 only, this evidence would be inadmissible and not before the jury.

26. Mr McNamara submitted that the main principles apposite to this case are[7]:

“THE LAW
9. The law is uncontroversial. The main principles (apposite to this case) are:
(a) The trial judge has a discretion as to whether a trial should take place or continue in the absence of a defendant and/or his legal representatives.
(b) That discretion should be exercised with great care and it is only in rare and exceptional cases that it should be exercised in favour of a trial taking place or continuing, particularly if the defendant is unrepresented.
(c) In exercising the discretion the judge must have regard to all the circumstances of the case including:
‘where there is more than one defendant and not all have absconded, the prospects of a fair trial for the defendants who are present’.
10. The prosecution has not demonstrated that this is a rare and exceptional case, no doubt because the opposite is true. There is nothing at all rare and exceptional about this case. That being so, the prosecution application should be summarily dismissed.
11. However there is the added factor that the prejudicial matters that would arise if D1 is also tried at the same time would inevitably hinder the prospects of D2 receiving a fair trial for the reasons set out above. It is significant that the prosecution does not even address that important issue in its written submission.”

A consideration of the submission

27. There is really no dispute as to the relevant legal principles. After considering the submissions and the circumstances of this case, I was of the view that this was not a proper case for me to exercise my discretion to order D1 to be tried in absentia together with D2 as there were prejudicial matters (as submitted by Mr McNamara) that would arise if D1 was also tried at the same time as D2, such matters would inevitably hinder the prospect of D2 receiving a fair trial.

28. On the other hand, I was of the view that a trial of D1 alone in absentia would be proper.

Post script

29. As a result of my ruling, D2 was to be tried on his own. The trial did not take place due to the unexpected unavailability of the Ewe interpreter. Since Inars was already in Hong Kong and ready to testify, I proceeded with the trial of D1 alone in abentia, with a new case no HCCC 2A/2019.

	(Judianna Barnes)
	Judge of the Court of First Instance
	High Court

Mr Ken Ng Kin-man, Counsel-on-fiat of the Department of Justice, for the Prosecution

Mr John Patrick McNamara, Counsel instructed by Messrs Morley Chow Seto, assigned by D.L.A. for the 2^nd Defendant

[1] Prosecution’s Skeleton Submission/Authorities

[2] The principles adopted by HKSAR V KWAN WAI KEUNG & ORS. CACC259/2011 at paras. 6(1) to 6(4).

[3] The principles adopted by KWAN’s case at para.6(5) ante

[4] The principles adopted by KWAN’s case at para.6(6) ante

[5] The principle adopted by KWAN’s case at para.6(7) ante

[6] In the said case of House of Lords in R V Jones [2003] 1 AC, as per Lord Bingham at para. 12, “seriousness of the offence, which affects defendant, victim and public” … should not be considered as a factor. It is likewise so held in SINGH GURSEWAK CACC399/2013 at para.30.

[7] 2^nd Accused’s submissions

HCCC 2/2019

[2021] HKCFI 266

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 2 OF 2019

_________________

BETWEEN
	HKSAR
and
	ADJEI ROBERT (also known as ADJEI KING)	Defendant

_________________

Before:

Hon Barnes J in Court

Dates of Hearing and Decision:	29 January 2021
Date of Handing Down of the Reasons for Decision:	8 February 2021

________________________

REASONS FOR DECISION

________________________

The application

1. This is an application by the defence for a Permanent Stay of these Proceedings on the grounds that in all the circumstances of this case a fair trial is not possible.

2. After hearing submission on 29 January 2021, I ruled against the defendant, in that the defendant failed to show, on a balance of probabilities, that a fair trial is not possible. I said at the time that I would give my reasons. This I now do.

Background

3. The defendant faced three counts in an indictment which alleged that he, together with another defendant in the name of Balakrishnan Mahendran (“BM”) and other persons unknown:

(1).  Forcibly taking away a person named Munatsi Kingsley also known as Kingston Fernadez (“Kingsley”) with intent to procure a ransom for the liberation of Kingsley (1^st count);
(2).  Kidnapping Kingsley, an alternative 2^nd count to the 1^st count; and
(3).  Forcible detention of a person named Babauskis Inars (“Inars”) with intent to procure a ransom for liberation of Inars (3^rd count).

4. There is no need to go into details of the prosecution case. Suffice it to say that after the alleged offences which took place on 26 September 2017, Kingsley was not available to give evidence, and the main witness for the prosecution was Inars, who is a Latvian living overseas and was visiting Hong Kong at the time of the incident in September 2017.

5. I will first set out a chronology of this case:

(1).  There were originally two cases involving the two defendants as they were arrested at different times. The indictment against BM was filed on 28 November 2018 whilst the indictment against the defendant was filed on 14 January 2019. The two cases were consolidated on 30 January 2019, with Case Management Hearing (CMH) set down on 10 April 2019 and trial to run from 22 August – 6 September 2019;
(2).  On 10 April 2019 CMH was held. BM, who was on bail, was allowed to have bail extended. The defendant was remanded in custody. A further CMH was ordered to take place on 28 May 2019;
(3).  By a letter dated 14 May 2019, the CMH was vacated (due to the fact that I was detained overseas for a personal matter);
(4).  By another letter dated 11 June 2019, a further CMH was arranged to take place on 2 July 2019;
(5).  On 2 July 2019, both defendants were present. Trial was ordered to take place as scheduled, with two extra days to be added. BM’s bail was extended and the defendant was again remanded in custody;
(6).  On 21 August 2019 the prosecution wrote to this Court, informing this Court that Inars did not board the flight to Hong Kong as scheduled;
(7).  On 22 August 2019, which was the first day of the trial scheduled, Inars failed to turn up. The case was adjourned to 4 October 2019 for Mention pending police enquiry on why Inars failed to appear. BM’s bail was again extended. The defendant was granted bail on this occasion;
(8).  On 4 October 2019, BM failed to appear. Warrant of Arrest was issued against BM with bail money estreated. Counsel for BM was discharged. On that occasion the prosecution informed this Court that Inars failed to turn up due to the unstable social condition in Hong Kong. This Court directed the prosecution to ascertain the length of the trial and whether to proceed against the defendant on his own. The trial dates were vacated and the case was sent to the Listing Judge for re-listing;
(9).  On 21 November 2019, parties were informed another CMH would take place on 9 March 2020, with new trial dates fixed from 11 June 2020 to 24 June 2020;
(10).  Due to the General Adjournment Period (GAP) imposed by the Judiciary as a result of the Covid-19 pandemic, the case was re-scheduled as follows: CMH scheduled on 9 March 2020 was relisted to 27 March 2020, then was again relisted to 16 April 2020;
(11).  On 16 April 2020, CMH was held. BM was still at large. The prosecution informed this Court that Inars, who was willing to testify, was in India and as a result of the “lockdown” there he could not come to Hong Kong. Due to the uncertainty, the trial dates were vacated. The prosecution informed this Court that the trial against the defendant would proceed in any event. Trial was to be re-fixed and the defendant’s bail was extended;
(12).  On 8 May 2020, the case was fixed for Mention on 14 December 2020 with trial dates fixed to take place on 15, 18-22, 25-28 January 2021;
(13).  On 14 December 2020, BM was still at large. The prosecution informed this Court that they will apply for the trial to take place against both defendants, in BM’s absence. This Court fixed a hearing for submissions on 7 January 2021;
(14).  On 7 January 2021, after hearing submissions, I refused the prosecution’s application to have the trial against BM in absentiatogether with the defendant on the grounds that it would be unfair to the defendant to do so. I then indicated that a trial of BM on his own in his absence would be allowed. (A separate judgment will be handed down in relation to that application in due course);
(15).  On 15 January 2021, the first day of trial against the defendant, Inars was already in Hong Kong and ready to give evidence. The trial against the defendant could not take place due to the sudden unavailability of the Ewe/English interpreter the Judiciary has engaged to translate for the defendant. The Court was informed that that particular interpreter was the only Ewe/English interpreter available for the job at the time; and that, due to the Covid-19 situation and the resultant “lockdown” in many countries, it would have been difficult to locate another Ewe interpreter in the near future;
(16).  Faced with such a situation, I then decided to conduct the trial of BM in absentia, while Inars was in Hong Kong, to start on Monday 18 January 2021;
(17).  In the afternoon of 15 January 2021, this Court was informed that an alternative Ewe interpreter, who had assisted the Judiciary before, was located and the new interpreter was willing to act as an interpreter in this case;
(18).  On Monday 18 January 2021, it was discovered that the Ewe dialect spoken by the new interpreter was not the same as the one spoken by the defendant. Faced with such a situation, this Court had no alternative but to proceed with the trial of BM in absentia, starting from Tuesday 19 January 2021;
(19).  The prosecution asked for a further adjournment of the trial of the defendant, while the defence indicated that they would make an application to stay the proceedings. This Court then fixed a date for the hearing of the application. On the same day (ie 18 January 2021) the defendant filed a Motion to permanent stay the proceedings against him.

Grounds of the application for Stay

6. Mr John McNamara, counsel for the defendant, gave this Court information about the background of the defendant in his written submission.

7. Mr McNamara submitted that the defendant, who lived and grew up in a village in the Volta region in Ghana, came to Hong Kong in 2003 and sought political asylum as a torture claimant. The defendant was married to a Chinese in Hong Kong in 2017. The defendant’s first language is Ewe and he can understand a little of the Twi language. He can speak Cantonese with moderate proficiency but cannot read and write Chinese. He can communicate in simple English only but his ability to read and write English is limited.

8. Mr McNamara submitted that to be able to properly apprehend the trial proceedings the defendant would require the assistance of an Ewe interpreter who speaks the same dialect as the defendant.

9. In short, Mr McNamara’s submission was that without the service of an appropriate Ewe interpreter the defendant cannot receive a fair trial.

10. Mr McNamara also asked this Court to consider the application in the context of the history of this case, pointing out that the defendant attended court on 11 occasions since 10 April 2019 and none of the adjournments were due to any act or omission by the defendant.

11. Mr McNamara also submitted that should the case be adjourned (as requested by the prosecution) instead of being stayed, with the past history of difficulties in getting Inars to come to Hong Kong to give evidence, there is a high probability that Inars would not be willing or be able to be in Hong Kong for the trial.

Stance of the Prosecution

12. The prosecution’s stance, in short, was that they were ready to proceed with the trial of the defendant as scheduled since Inars had already arrived in Hong Kong to give evidence. It was due to the unexpected unavailability of Ewe interpreter that the trial could not proceed. While it is difficult for the Judiciary to find a suitable interpreter for the defendant in the near future due to the global Covid-19 situation, that does not mean that given time, such an interpreter cannot be found.

13. Mr Ken Ng, counsel on fiat for the prosecution, informed this Court that Inars is willing to come to Hong Kong again to testify, adding that Inars’ recent visit to Hong Kong to give evidence against BM demonstrated that Inars is someone who would keep his promise.

14. Mr Ng also submitted that the defendant is on bail and is only required to report to the police station once every fortnight, which is a rather loose condition.

15. Mr Ng submitted that the solution is to expedite the process in the search of a suitable interpreter for the defendant instead of staying the proceedings.

The law

16. There is no dispute about the applicable law. Both parties relied on the relevant section for Stay of Proceedings in Hong Kong Archbold 2021, para. 4-49 to 4-51. I will just set out those passages relevant to this hearing:

(a)  “In general, if a charge is properly brought before a court of competent jurisdiction that court is obliged to try the case: HKSAR v Lee Ming-tee [2001] 1 HKLRD 598… However, the courts have a residual discretion to make orders including an order staying proceedings brought before it to protect itself from an abuse of the court’s process: [Lee Ming-tee], Connelly v DPP [1964] AC1254, R v Humphrey [1977] AC 1; Warren v Attorney-General for Jersey [2012] 1 AC 22” (para. 4-49)
(b)  “…In exercise of its inherent power to prevent an abuse of its own process, the court has jurisdiction to stay criminal proceedings in two circumstances, (1) Where, notwithstanding the remedial measures which are available to a court to ensure a fair trial, the circumstances are such that ‘a fair trial for the accused is found to be impossible and continuing the prosecution would amount to an abuse of the process’ (emphasis added). That is because “the continuation of processes which will culminate in an unfair trial can be seen as a ‘misuse of the court process’ which will constitute an abuse of process because the public interest in holding the trial does not warrant the holding of an unfair trial.” The burden is on the accused to show on the balance of probabilities that no fair trial can be held…” (para. 4-50)
(c)  “The power is designed to protect [the court’s] own process from abuse…” (para. 4-51 (1))
(d)  “The ultimate objective of this discretionary power is to ensure that there should be a fair trial according to law, which involves fairness both to the accused and the prosecution (R v Derby Crown Court (1984) 80 Cr App R 164)” (para. 4-51 (5))
(e)  “The means to ensure fairness of trial in any ordinary case is by the court exercising its power to control rather than to stay the proceedings...” (para. 4-51 (6))
(f)“The court has a wide discretion as to how it goes about determining whether or not to stay the proceedings...” (para. 4-51(7))
(g)  “The remedy to stay of proceedings should be sparingly exercised. … It is … a power that should only be exercised in the most exceptional circumstances. (DPP v Humphreys [1977] AC 1, 26)” (para. 4-51(8))
(h)  “The categories of abuse are never closed: R v Li Wing-tat [1991] 1 HKLR 731, [of two major streams of stay cases]. The first is that stay was granted on the basis that requirement of a fair trial had become impossible making the continuation of the prosecution case an abuse of process… (HKSAR v Lee Ming Tee [2001] HKLRD 598)” (para. 4-51 (8))
(i)  “A decision to stay or refuse to stay proceedings on the basis that they constitute an abuse of process is a decision that can only be upon findings of fact: HKSAR v Wang Hung Ki [2010] 4 HKC 118, para 65” (para. 4-51 (11))

My consideration of the submissions

17. There is no doubt that the prosecution was ready to proceed with the trial of the defendant as scheduled on 15 January 2021 - the overseas witness Inars having arrived in Hong Kong by then. It was due to the unexpected unavailability of the Ewe interpreter that the trial against the defendant could not proceed.

18. To ensure the defendant has a fair trial, it is important that the defendant has the service of an Ewe interpreter who speaks his dialect, even though the defendant understands some English and has become proficient in Cantonese after living here for many years and having married a local Chinese.

19. While it is not possible to secure the service of an appropriate interpreter at the time of the trial or in the near future, it cannot be said to be the case that such an interpreter cannot be found, given time.

20. The offences faced by the defendant are serious. Though there had been some difficulties in getting Inars to come to Hong Kong to testify in the past, Inars did come despite the challenges posed by the Covid-19 pandemic. Inars in fact did give evidence in the trial of BM, which started on 19 January 2021. I was informed that Inars has indicated he is willing to come to Hong Kong again to testify in the trial of the defendant.

21. Although the incident happened in 2017, this is not a case that would rely purely on memories of witnesses as there are various CCTV footages which captured the event. The prosecution also relies on photographs retrieved from the mobile phone of BM, a person alleged to have acted in concert with the defendant to commit the offences.

22. Further, the defendant has been granted bail and he is only required to report once a fortnight.

23. Having considered all the circumstances, I did not find this to be a case in which “a fair trial for the defendant had become impossible” so as to require me to exercise my discretion to stay the proceedings.

24. I was of the view that a further adjournment should be granted to allow time to obtain the service of an Ewe interpreter. I urged parties to assist the Judiciary to locate such an interpreter so that the trial can proceed on the next occasion.

Conclusion

25. For these reasons, I refused the defence application to stay the proceedings against the defendant. The case was to be re-fixed.

	(Judianna Barnes)
	Judge of the Court of First Instance
	High Court

Mr Ken Ng Kin-man, Counsel-on-fiat of the Department of Justice, for the Prosecution

Mr John Patrick McNamara, Counsel instructed by Messrs Morley Chow Seto, assigned by D.L.A., for the Defendant.

HKSAR v. ADJEI ROBERT (also known as ADJEI KING)

Related cases with same parties

Files (3)