Case Detail

HCCC 391/2019

[2022] HKCFI 2439

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 391 OF 2019

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BETWEEN

	HKSAR	Prosecution
	V
	Cheung Tsz-wan	Defendant

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Before: Hon Yau J in Court

Date of Hearing: 14 July 2022

Date of Ruling: 8 August 2022

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R U L I N G

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1. The defendant makes an application for a permanent stay of proceedings on the ground that a police officer, DPC 11707, who threatened her to make confessions after she was arrested, has left the police force and is unable to be located or call to evidence in her trial, thus rendering a fair trial impossible.

Background

2. Room 1001, 10/F, Ocean Hotel, National Court, Nathan Road, Kowloon (“the room”) was rented to the defendant on 23 April 2018 for a term of 1 year at a monthly rent of $5,000. On 1 May 2018 police officers raided the room and found the defendant sitting at a desk while her 7- year-old daughter was sleeping in bed. A large quantity of dangerous drugs of various types and items that could be used for packing dangerous drugs were found near the desk where the defendant was sitting.

3. It is the allegation of the prosecution that the defendant made verbal admissions when being arrested and cautioned at the scene and during the video recorded interview subsequently conducted. A post recorded entry was also made of the admissions of the defendant made at the scene.

4. DPC 11707 (“the DPC”) was a member of the raiding team, but he did not play any role in the finding of the dangerous drugs or the arrest of the defendant although he was present at the scene. He is not listed in the indictment as a witness for the prosecution. The defence, however, makes allegations against the DPC for threatening the defendant at the scene of arrest. The particulars are that the DPC told the defendant not to pretend to know nothing and as she had been caught red-handed she had to admit the offence otherwise he would add 400 grammes of dangerous drugs to those found in the room. The DPC also threatened to send the daughter to Po Leung Kuk because the defendant had exploited her in committing the offence.

Principles of Permanent Stay of Proceedings

5. It was stated by the English House of Lords in Connelly v DPP [1964] AC 1254 that the jurisdiction of the court to stay proceedings rested on the court’s inherent jurisdiction to prevent abuse of its own process. Although there is an increasing number of cases in Hong Kong in which applications to stay the proceedings are made there are ample authorities saying that it is a power which should be sparingly exercised.

6. In the case of Re Molloy’s Application [1]Carswell LCJ stated (p 85):

“In our opinion these authorities lead to the conclusion that the resort by the prosecution to a procedure which does not have the effect of depriving the court of its statutory jurisdiction may nevertheless be regarded as an abuse of the process of the court if, but only if, it operates to affect adversely the fairness of the trial. It is necessary in every case to look at the circumstances of the case, and it lies within the discretion of the court to decide whether the procedure operates against the interests of the defendant to an extent which requires it to step in and stay the proceedings. Courts which are invited to exercise this power should also bear in mind the observation of Lord Griffiths in Ex parte Bennett (R v Horseferry Road Magistrates Court Ex parte Bennett [1994] 1 AC 42) that it is to be ‘most sparingly exercised’ and that of Viscount Dilhorne in DPP v Humphrys [1977] AC 1 at page 26, that it should be exercised only ‘in the most exceptional circumstances’.”

7. The situation in Hong Kong bears very little, if any, difference from that in the UK. In the case of HKSAR v Lee Ming Tee and Another[2] (the first Lee Ming Tee case) which is cited by both the prosecution and the defence, Ribeiro PJ of the Hong Kong Court of Final Appeal recognised that the decision whether or not to bring a prosecution fell entirely within the province of the Secretary for Justice and that in general, if a prosecution was brought, the court’s duty was to try the case.

8. His Lordship, however, confirmed that the courts had the jurisdiction to stay criminal proceedings[3]:

“The trial of course proceeds in the vast majority of cases. However, the court also unquestionably has jurisdiction to stay criminal proceedings brought by the Secretary in the exceptional cases where such a course is justified. That jurisdiction rests on the court’s inherent power to prevent abuse of its own process……”

9. His Lordship set out the 2 limbs under which stay of proceedings would be granted. The first one was where a fair trial had been rendered impossible and the second one was where a fair trial was still possible but the circumstances involved an abuse of power which so offended the court’s sense of justice and propriety that the entire prosecution was tainted as an abuse of process. His Lordship thus stated:

“In most cases, the court only grants the stay because, notwithstanding the range of remedial measures available at trial, a fair trial for the accused is found to be impossible and continuing the prosecution would amount to abuse of process……
A second line of cases, also relied on in the present appeal, proceeds on a different basis. These are the rare cases where the court is prepared to grant a permanent stay even though a fair trial undoubtedly remains possible. The leading authority is the decision of the House of Lords in R v Horseferry Road Magistrates Court Ex p Bennett [1994] 1 AC 42, where, although the fairness of the trial was not in question, the Court granted a stay because the circumstances involved an abuse of power which so offended the Court’s sense of justice and propriety that the entire prosecution was tainted as an abuse of process.”

10. His Lordship also emphasised that the power was only most sparingly exercised and set out the reasons:

“While the jurisdiction on this dual basis clearly exists, it is only most sparingly exercised……
There are cogent reasons why in principle and in practice such stays are highly exceptional.
In the first place, it is only in very unusual circumstances that a court can properly be satisfied that a fair trial is “impossible”. The “fairness” achievable is judged in practical and not absolute terms……
More importantly, the court’s primary endeavour is to ensure that a fair trial takes place, employing the law’s available resources, and not to abort it on the ground that the fairness cannot be attained, save as a last resort.
……in cases where a fair trial remains possible even though official misconduct may be involved in the bringing of the prosecution, the court does not exercise the jurisdiction to stay proceedings as a means of disciplining the police or prosecuting authorities……
The public interest lies in the guilt or innocence of the accused being fairly and openly determined at trial. For this to be displaced, powerful reasons must exist for concluding that such trial, although fair, would nonetheless constitute an intolerable abuse of the court’s process. The instances where such an argument has any prospects of success must necessarily be very rare.”

11. In the present case it is conceded by the defence that they are only relying on the limb of a fair trial being impossible. Under such limb a stay will only be justified under very exceptional and rare circumstances.

12. In the case of HKSAR v Lee Ming Tee and Securities and Futures Commission[4] (the second Lee Ming Tee case), Sir Anthony Mason NPJ delivering the judgment of the Court of Final Appeal stated (p 394):

“It is generally recognised that only in exceptional circumstances will a stay be granted when a fair trial is possible. An indication of what this means is conveyed by L’Heureux-Dube J’s observation in R v O’Connor (1996) 130 DLR (4^th) 235 at p 277B-C:
‘...a stay of proceedings is only appropriate “in the clearest cases”, where the prejudice to the accused’s right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued.’
In the absence of a finding of ‘bad faith’, this standard will rarely, if ever be satisfied in a case where a fair trial is still possible. Even if there is a finding of ‘bad faith’, that finding would not necessarily conclude the matter.”

13. It can be seen from all these authorities that permanent stay of criminal proceedings, due to its drastic nature, is an action of last resort justified only in the most exceptional and rare circumstances.

14. The counsel for the defence, Mr Lau, submits that the prosecution has a duty to call the DPC as a witness because of the allegations made against him, citing R v Ng Tat Shing & Another [1977-1979] HKC 71 in support. The Court has no dispute about this contention, but must emphasise in the clearest terms that the failure to secure the attendance of a witness in court does not automatically result in a permanent stay of proceedings of a case. Whether a stay is actually justified is always case and fact specific depending on the circumstances of each individual case.

15. This is the view expressed in a vast number of authorities. In the present case the question to ask is, of course, whether the failure to call the DPC as a witness will render a fair trial impossible. As seen from the allegations made against the DPC by the defence the evidence he is capable of giving relates mainly to the issue of the admissibility of the admissions of the defendant in evidence. Mr Lau also points out that the evidence of the DPC is also relevant in relation to the finding of the dangerous drugs in the room, but his emphasis seems to be on the failure to call the DPC as a witness.

16. Mr Lau complains that without the DPC giving evidence in court the defence is deprived of the right to challenge the prosecution case and develop the defence case on core issues by confronting the police with the allegations of improper conduct. The Court has no hesitation to reject this argument. As pointed out above the DPC played a relatively minor role in this case. He was in fact not listed as a witness until the prosecution was asked by the defence to call him to testify, basically on the issue of voluntariness of the alleged admissions of the defendant. As rightly pointed out by the prosecution the matters, including the finding of the dangerous drugs, on which the DPC is capable of giving evidence about are the subject-matters of the evidence of other witnesses of the prosecution who actually dealt with the matters.

17. Mr Lau points out that there was an occasion inside the Yau Ma Tei Police Station where the DPC threatened the defendant when there was nobody else present. In the absence of the DPC as a witness in the trial the defence of course will not be able to cross examine him and put the case of the defence to him in this regard.

18. It is of course ideal and desirable that the DPC should be called to give evidence in the trial so that the defence can cross examine him on the voluntariness issue and any other issues, including the finding of the dangerous drugs, the defence may find necessary. It does not, however, follow that the proceedings have to be permanently stayed due to the failure of the prosecution to call him as a witness. The ultimate question to ask is whether a fair trial is still possible and, according to the first Lee Ming Tee case, it is to be judged in practical and not absolute terms.

19. Regarding the voluntariness issue the interests of the defendant are double safeguarded. Firstly, the issue is to be determined by the judge sitting alone in a voir dire. The burden of proof is on the prosecution and the prosecution is to prove beyond all reasonable doubt that the admissions were made by the defendant voluntarily. The judge will of course take into consideration of the DPC not being called as a witness in deciding whether the prosecution has attained such high standard of proof. If the judge is of the view that the prosecution has failed to do so or that there is unfairness in the issue he will no doubt rule the admissions inadmissible.

20. The issue will only be left to the jury if the judge rules that the prosecution succeeds in proving the voluntariness issue to the required standard and there is no unfairness. When the matter is presented before the jury the burden and standard of proof remain the same and the jury will no doubt be directed on the impact of the absence of the DPC as a witness. Experience tells us that jurors in Hong Kong are reasonable and sensible people, and the law also presumes them to be so. They are under an affirmation or oath to return a true verdict according to the evidence. The Court does not see how a fair trial can become impossible.

21. Regarding the issue of the finding of the dangerous drugs, as pointed out above, the DPC only played a minor role and, more importantly, the police officers who actually took part in finding the dangerous drugs will give evidence in this regard. The impact of the absence of the DPC’s evidence on these issues cannot therefore be significant.

22. According to the experience acquired in the many many trials in the past we know almost for sure what a police officer will say when confronted with the issue of voluntariness, and indeed, other issues. The absence of the evidence of the DPC may even be to the benefit of the defendant.

23. The Court is of the view that no matter the issue of voluntariness is taken alone or in combination with other issues a fair trial will still be possible.

24. Mr Lau criticises the prosecution for failing to take reasonable steps to secure the attendance of the DPC as a witness in the trial. He in particular points out that the DPC tendered resignation from the police force on 26 May 2021 and indicated that he was not going to be a witness in the case. The prosecution should have served a witness summons on him when he last attended the office of the police force on 25 June 2021.

25. When this case was set down for trial for the first time the DPC was still serving in the police force and the prosecution served on him a notice for a witness to attend court in accordance with the usual procedure for summoning a police officer to give evidence in a trial. There was no indication at that time that he was not going to attend court as a witness.

26. The trial was later refixed and the DPC tendered his resignation before the new trial date. Although there is some confusion as to the date the DPC actually left the police force, the prosecution knew full well about the problem as early as 10 June 2021 when they so informed the court in the PTR held on that day. It is of course an omission of the prosecution not to serve a witness summons on him on 25 June 2021 to ensure that the DPC would attend the trial.

27. This is, however, not the issue in this application as the defence has made it clear that they are not relying on the limb of abuse of power by the prosecution. That is to say the defence is not saying that the failure of the prosecution to secure the attendance of the DPC as a witness amounts to an abuse of process which so offends the court’s sense of justice and propriety that the entire prosecution is tainted as an abuse of process and is to be permanently stayed. As such, regardless of the reason of the prosecution not being able to call the DPC as a witness, the issue remains whether the absence of the DPC will render a fair trial impossible which the Court has already ruled otherwise.

28. Even if the defence had relied on the limb of abuse of judicial process the Court is of the view that its application would still fail. It would of course be ideal if the prosecution had served a witness summons on the DPC. But when the prosecution came to realise that they might not be able to call the DPC as a witness they took virtually all possible steps to locate him.

29. They obtained the address and telephone numbers of the DPC from the Personnel Wing of the police force and the vehicle licence registration office. They also approached the telephone network providers, the utilities companies and a number of banks to obtain the addresses of the DPC. They found that the DPC was no longer living at those addresses despite visiting them on more than one occasions. The Personnel Wing located the wife of the DPC by telephone and asked her to contact the investigation team in this case but she failed to do so.

30. The prosecution have no doubt tried their best to locate the DPC. The Court is of the view that it is not a deliberate or tactical move of the prosecution to prevent the DPC from giving evidence. As pointed out in the second Lee Ming Tee case, in the absence of a finding of ‘bad faith’, proceedings would unlikely be permanently stayed on ground of abuse of judicial process where a fair trial is still possible. Under the circumstances of the present case it cannot be said that there was abuse of power by the prosecution to the extent that the proceedings should be permanently stayed.

Conclusion

31. As rightly pointed out by the prosecution and the defence, according to the case of R v Holgate (No 1) [1996] 3 HKC 315 it is for the defence to prove on the balance of probability that a fair trial is impossible. The defence fails to so prove and its application is dismissed.

32. The issue can of course be revisited during the course of the trial if the circumstances so warrant.

Order

33. It is hereby ordered that this Ruling is to be provided to the parties including the defendant only and without the leave of this Court:

(a) this Ruling is not to be handed to any other person or made available for reading by any other person; and
(b) the contents of this Ruling are not to be disclosed to any other person or published, including the uploading of any part thereof on the internet or any other public information or media platform.

Upon the conclusion of the trial of this case at the Court of First Instance this Order shall be discharged automatically and this Ruling will be uploaded on the Judiciary website.

	(Joseph Yau)
	Judge of the Court of First Instance of the High Court

Mr John Marray, counsel on fiat, for HKSAR

Mr Clement Lau, instructed by Messrs Lim & Lok, assigned by the Director of Legal Aid, for the Defendant

[1] [1998] NI 78

[2] (2001) 4 HKCFAR 133

[3] At page 148

[4] (2003) 6 HKCFAR 336

HCCC 391/2019

[2020] HKCFI 1936

Court Order

Before the trial at first instance in the present case is fully concluded, this Reasons for Ruling shall only be provided to the parties including the defendant. Without leave of the court:

(1) this Reasons for Ruling shall not be handed to any other person or made available for reading by any other person; and
(2) save and except paragraph 5 of this Reasons for Ruling, any other part of the content thereof shall not in any way be disclosed to any other person or published (including the uploading of any part thereof onto the internet or any other public information or media platform).

Upon conclusion of the trial at first instance in the present case, the aforesaid order shall be discharged automatically and this Reasons for Ruling will be uploaded onto the Judiciary website.

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL JURISDICTION

CRIMINAL CASE NO 391 OF 2019

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	HKSAR
	and
	CHEUNG TSZ WAN	Defendant

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Before: Hon Wong J in Court

Date of Hearing: 30 July 2020

Date of Ruling: 30 July 2020

Date of Reasons for Ruling: 5 August 2020

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R E A S O N S F O R R U L I N G

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1. The defendant faces a count of Trafficking in a dangerous drug. She was arrested by the police upon information.

2. The facts which the prosecution alleged may be briefly stated as follows. The defendant was arrested inside a room of a hotel. Entry into the room was gained by police officers with the assistance of the hotel management. The defendant as well as the dangerous drug in question were found inside the room. The defendant made confession under caution.

3. The defence sought disclosure of the content of the information which the police had received and also of the time such information was provided to the police. I was given to understand that disclosure had otherwise been completed.

4. The prosecution refused, mainly for the following two reasons:

(1) The information was not relevant to the trial; and
(2) Disclosure of the information might lead to revealing of the identity of the informant.

5. After hearing submission and consideration of the relevant material, I ruled that no order for further disclosure should be made. These are the reasons for my ruling.

6. The reasons which the prosecution provided for non‑disclosure were as set out in paragraph 4 above.

7. Mr Lau for the defence stressed the importance of the duty of the prosecution to make disclosure and highlighted that the defence was not asking for disclosure of the identity of the informer.

8. Mr Lau said the defendant was entitled to know the circumstances leading to the arrest and to rely on such background information to test the credibility of the prosecution witnesses. Information such as the nature of the dangerous drug, as well as geographical area and time of the criminal activities would have impact of the reasonableness of the police actions and credibility of the witnesses.

9. It was his submission that as the prosecution had not proved the requested information would reveal the identity of the informer, disclosure should be made. He also submitted that so long as the information was not covered by informer privilege, the prosecution was under the duty to disclose regardless of the probative value the information bears or how inconvenient it would be to disclose.

10. The leading local authority regarding the duty of disclosure is HKSAR v Lee Ming Tee (No 2)[1] in which the Court of Final Appeal held[2]:

(1)  Prosecution’s duty to disclose relevant material is preceded by a duty to ascertain what relevant material exists;
(2)  Its duty is to disclose to the defence relevant material (including information) which may undermine its case or advance the defence case.
(3)  The duty is not limited to disclosure of admissible evidence.
(4)  Information not itself admissible may lead by a train of inquiry to evidence which is admissible.
(5)  Material which is not admissible may be relevant and useful for cross-examination of a prosecution witness on credit.

11. The Court of Appeal held in HKSAR v Ip Tsz Yau[3] that disclosure was a continuing exercise, once it became clear that certain material was potentially relevant to the issues before the court such material should be disclosed.

12. In the context of a case of the present nature, section 57 of the Dangerous Drugs Ordinance[4] which provides for protection of the identity of the informer in particular his name and address must be taken into account.

13. Mr Marray for the prosecution submitted that if the details of the information supplied to the police and the time of supplying of the information were disclosed it would likely lead implicitly to the discovery of the identity of the informer. Such risk would be particularly high if only a limited number of people would have known information in such detail and at such time and circumstances.

14. In HKSAR v Agara[5], Stock VP (as Stock NPJ then was) stressed the importance of informer privilege and said:

“the circumstances in which the disclosure of an informer’s identity in a criminal trial may be justified is an exception – indeed the sole exception – to informer privilege.”[6]

15. His Lordship referred with agreement to what McLachlin J said in R v Leipert[7]:

“… informer privilege is broad in scope … Subject only to the ‘innocence at stake’ exception, the Crown and the court are bound not to reveal the undisclosed informant’s identity.
Informer privilege prevents not only disclosure of the name of the informant, but of any information which might implicitly reveal his or her identity. Courts have acknowledged that the smallest details may be sufficient to reveal identity.
… The privilege is a hallowed one and it should be respected scrupulously.”

16. There was no dispute by both parties as to the legal principles set out in Agara[8].

17. It was also held in Bisaillon v Keable[9], a Canadian case, that “this rule[10] is subject to only exception, imposed by the need to demonstrate the innocence of an accused person.”

18. The burden is on the defence to show that the information sought to be disclosed is necessary to demonstrate the innocence of the accused.[11]

19. It was held in Leipert[12]:

“In order to raise the ‘innocence at stake’ exception to informer privilege, there must be a basis on the evidence for concluding that disclosure of the informant’s identity is necessary to demonstrate the innocence of the accused … a mere speculation that the information might assist the defence is insufficient. If speculation sufficed to remove the privilege, little if anything would be left of the protection which the privilege purports to accord.”[13]

20. It was also held in R v Ward[14] that:

“They will need to be astute to see that assertions of a need to know such details, because they are essential to the running of the defence, are justified. If they are not so justified, the judge will need to adopt a robust approach in declining to order disclosure.”[15]

21. The Court of Appeal in HKSAR v Lam Timothy Yat Fung[16] reiterated that the principles on allowing an exception to informer privilege were as follows:

(1)  unless the relevant information is necessary to demonstrate the innocence of the accused, no disclosure shall be allowed;
(2)  the onus is on the applicant to show that the information is necessary;
(3)  there must be evidence that provides a basis for requiring disclosure;
(4)  speculation that the information may assist the applicant must be resisted; and mere speculation does not constitute a basis for an invasion of the informer privilege;
(5)  the court should be alert to the danger of a proliferation of unmeritorious applications;
(6)  the court should accord the special role of informer particular weight.

22. The prosecution produced to the court exclusively a document dated 15 July 2020 prepared by the police. With the above principle in mind, I had perused the document. The content of this document covers the following matters:

(1)  the information which the police received (hereinafter called “the information received”);
(2)  the time and date the information was received;
(3)  the officer who received the information, and his attachment;
(4)  the time the police started to take action upon the information received;
(5)  the time the police started to liaise with the hotel management; and
(6)  result of the liaison with the hotel management; and
(7)  what actions the police had taken (as stated in the document).

23. In my judgment, irrelevance may not be a solid reason for non‑disclosure of these matters. In any case, matters (6) and (7) are, to my understanding, covered in the statements of relevant prosecution witnesses which had been disclosed.

24. On the other hand, in the circumstances of the case I was of the view that matters (2)　‑　(5) encroached on the informer’s privilege as the risk that his identity would be revealed was readily perceived. As regards matter (1), I was persuaded by the reasons provided by the prosecution that disclosure of the information might implicitly reveal the identity of the informant.

25. I had considered whether the exception of innocence at stake should be applied. In the light of the state of play at the time of the hearing I came to the conclusion that disclosure based on this exception was not justified.

26. I had also considered the suggestion of Mr Lau of redaction so as to minimize or even eliminate the risk concerned. In my judgment, redaction which would be effective in minimizing the risk would leave the remaining part of the information not meaningful at all.

27. For the reasons mentioned, I was of the view that only the information in the said document relating solely to matters (6) and (7) should be disclosed. The information, however, had already been made known to the defence.

28. In the circumstances, I made no order for further disclosure.

29. At the same time, I stressed that this decision was made without prejudice to the general principles governing the duty of the prosecution to disclose and if in future there is material which in the judgment of the prosecution should be disclosed such action should be taken.

30. Disclosure is a continuing exercise. If situation warrants at a later stage, the issue may be re-visited.

(Albert Wong)
Judge of the Court of First Instance
High Court

Mr John Marray, counsel-on-fiat, instructed by the Department of Justice, for the Prosecution/HKSAR

Mr Clement Lau, instructed by Lim & Lok (assigned by DLA), for the accused

[1] (2003) 6 HKCFAR 336.

[2] See paragraphs 142 ‑ 176 of the judgment.

[3] CACC 199/2015, paragraph 36.

[4] Cap 134, Laws of Hong Kong.

[5] [2014] 2 HKLRD 648, CACC 354/2012.

[6] Paragraph 2 in the judgment.

[7] [1997] 1 SCR 281, which was cited in some details also by Yuen JA, see paragraphs 34 ‑ 40 in the judgment.

[8] See footnote 5.

[9] [1983] 2 SCR 60.

[10] The rule is that in relation to the rule governing informer privilege.

[11] See paragraph 4 in the judgment of Agara (footnote 5).

[12] See footnote 7.

[13] Paragraphs 295 & 296 in the judgment.

[14] [1993] 1 WLR 619.

[15] Paragraph 5 in the judgment.

[16] CACC 178/2013.

HKSAR v. CHEUNG TSZ WAN

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