THE QUEEN v. WILLIAM HUNG

Case No. 32 of 1991

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H E A D N O T E

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Delay in criminal trials:- a delay of approximately 18 months between arrest and trial with the defendant in custody found to be a breach of the right under Article 5(3) of the Bill.of Rights, and prima facie excessive, but not.a breach of the right to trial without undue delay under Article 11(2) (C).

Case No. 32 of 1991

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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R U L I N G

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1. This is an application brought under Articles 5(3) and 11(2)(c) of the Hong Kong Bill of Rights to permanently stay the criminal proceedings against William Hung, who faces serious drug charges, on the grounds that his right to have the matter brought to trial within a reasonable time and without undue delay has been infringed.

Article 5(3) is to the following effect:- "Anyone arrested or detained.on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment." Article 11(2)(c) reads as follows:-

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

...

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

2. The Hong Kong Bill of Rights Ordinance (the Bill) came into effect on the 8th June 1991. Simultaneously, there was an amendment to the Hong Kong Letters Patent, which prohibits the Hong Kong legislature from making any law in the future which is inconsistent with the International Covenant on Civil and Political Rights (ICCPR), which came into being in 1966 and was subsequently ratified by the British Government. The Sino-British Joint Declaration, an international treaty registered at the United Nations, signed in December 1984 and ratified in May 1985, provides for the resumption of sovereignty over Hong Kong by the People's Republic of China from 1st July 1997 and stipulates, inter alia, that the laws in force in Hong Kong at that time will remain basically unchanged; that there will be an independent judiciary; and that basic rights and freedom will be ensured. The Joint Declaration further provided that these basic principles be enshrined in a special constitutional law to be known as the Basic Law. The Basic Law was promulgated on the 4th April 1990 by decree of the President of the People's Republic of China.

3. The Joint Declaration provides for the continuation in. force, after 1997, of the provisions of ICCPR (as well as the International Covenant on Economic, Social and Cultural Rights) as applied to Hong Kong. This provision was also incorporated in Article 39 of the Basic Law. Effectively, therefore, both the Joint Declaration and the Basic Law provide a safeguard or guarantee against any future restrictions on the rights and freedoms of Hong Kong citizens which contravene the provisions of ICCPR (and the other covenant). That constitutional guarantee is provided up to July 1997 by the Letters Patent as amended in June 1991.

4. The Bill which is not per se a constitutional enactment, is, as it had to be, consistent with the Basic Law, whose paramountcy is expressly stated in its Article 8, so that the Bill could not be entrenched in the conventional sense. Furthermore, the provisions of both the Joint Declaration and the Basic Law meant that the Bill had to have ICCPR as its model. Indeed the Bill's Articles are taken directly from ICCPR with a few cosmetic changes.

5. I give this brief outline of the historical origins of the Hong Kong Bill of Rights because it seems to me essential that we see and construe it from a proper constitutional perspective, and because, when, inevitably, it is compared with similar enactments in other jurisdictions, and when we look to these other jurisdictions, as we will, for help and guidance in interpreting the provisions of our Bill, it will be necessary to bear in mind the historical context in which our Bill came into being. As was said by La Forest J. in Rahey v. The Queen [1987] 33 CCC (3d) 289 at 325:-

"while it is natural and even desirable for Canadian courts to defer to American constitutional jurisprudence in seeking to elucidate the meaning of charter guarantees that have counterparts in the United States Constitution, they should be warned of drawing too ready parallel between constitutions born to different countries in different ages, and in very different circumstances".

Naturally we can derive real assistance from the experience of those other jurisdictions in interpreting enactments similar, if not identical, to our own. Silke, V-P agreed with that proposition in R. v. SIN Yau-mina HC289 of 1990 where he said at p.20:-

"While this court is, in effect, required to make new Hong Kong Law relating to the manner of interpretation of the Hong Kong Bill and consequentially the tests to be applied to those laws now existing and, when asked, those laws yet to be enacted, we are not without guidance in our task. This can be derived from decisions taken in common law jurisdictions which contain a constitutionally entrenched Bill of Rights. We can.also be guided by decisions of the European court of human rights - 'The European Court' - and the European Human Rights Commission - The Commission'. Further, we can bear in mind the comments and decisions of the United Nations Human Rights Committee - 'The Committee'. I would hold none of these to be binding upon us though in so far as they affect the interpretation of Articles in the Covenant, and are directly related to Hong Kong legislation, I would consider them as of the greatest assistance and give to them considerable weight."

He went on:-

"Greater assistance can be derived from those two common law jurisdictions, the United States of America and Canada, which have constitutionally entrenched Bills of Rights."

However when we come, as I do, to apply an interpretation of Articles which bear upon questions of "reasonableness", or the meaning of expressions such as "undue delay", in relation to the conduct of criminal proceedings, then the American, and the Canadian, and the European experiences, while they may assist to some extent in the formulation of principle, cannot be allowed to dictate norms which are largely influenced by local cultural, social and economic factors.

6. As Lord Templeman, giving the judgment of the Privy Council in Mungroo v. R. 1991 1 WLR 1351, on an issue relating to s.10 of the Constitution of Mauritius, which provides for a "fair hearing" of criminal matters "within a reasonable time, said:-

"When delay amounting to an infringement of a constitutional right is alleged, the courts must have regard to the reasons for the delay and to the consequences of the delay. In Bell's case, at p.953, the Board expressed the view that the delay must also be considered in the context of the prevailing system of legal administration and in the prevailing economic, social and cultural conditions to be found in the country concerned."

7. In "Bell's case" (Bell v. DPP 1985 1 AC 937), and due allowance for the local Mungroo, the Board made conditions, such as the "disparity between the demand for legal services and the supply of legal services" (Bell p.953) that prevailed in both Jamaica and Mauritius so that longer delays might be excusable or at least not unreasonable. I venture to suggest that no such allowance is likely to be made for Hong Kong, whose administration has at its disposal the means to provide adequate resources to ensure the proper, efficient, and timely disposal of its criminal proceedings.

8. Let me now set out the facts on which this application is based, and the administrative context in which it is claimed that the delay between arrest and trial is unreasonable and infringes the applicant's right to a trial without undue delay.

9. The applicant was arrested and taken into custody on 26th September 1990. He was charged with trafficking in approximately 4.8 kgs of methylamphetamine hydrochloride (popularly known as "ice"). After initially electing a preliminary enquiry in terms of section 80A (4) (c) of the Magistrates Ordinance Cap.227, and later deciding against such an enquiry, he was eventually committed for trial on 23rd January 1991. The matter was set down for trial on 5th December 1991. The applicant had, all along, been remanded in custody.

10. On 5th December 1991 Mr Chandler, who also appeared on the present application, indicated that he would be making an application for permanent stay of the proceedings under the Bill, alleging an infringement of the applicant's right to a trial without undue delay and within a reasonable time. The Crown applied for and were granted an adjournment of some six weeks so that counsel from the Attorney General's special unit dealing with Bill of Rights matters could be instructed to meet Mr Chandler's submissions. Mr Jerome Mathews appearing for the Crown on fiat to prosecute the case was advised that he was not instructed to deal with Bill of Rights arguments. An application for bail made on that same day was refused and the trial was adjourned.

11. In the event, a new trial date of 5th March was fixed, and after a short adjournment sought by the applicant till 9th March, Mr Chandler began his submissions in the present application. He does not claim that any delay after 4th March is relevant to this application. As of 4th March the applicant had been in custody awaiting trial for 526 days. He had made three unsuccessful applications for bail to the Magistrate and two to the High Court before I granted him bail on 13th March. I had refused him bail on 10th March.

12. I should say here that, in my view, the substantive issues in the case, though concerned with a very serious criminal offence, are very simple, and could be disposed of in a trial lasting three or four days. The estimate of eight days given initially, when the matter was first set down for trial, was excessive. The reasonableness, or otherwise, therefore, of a delay of 526 days before trial, with the applicant in custody, must be judged, inter alia, in the context of a relatively short and uncomplicated matter which could be disposed of in a few days.

13. Much has been said both publicly and privately about the delays that are now commonplace in the obtaining of trial dates for criminal matters in the High Court. Indeed there was much publicity given to a recent application for the creation of three new Judges to cope with the increased workload in the High Court in an effort to reduce these delays. In the course of that application it was said that the average waiting time for a criminal trial in the High Court in 1991 was 268 days. Mr Chandler took serious issue with that figure and submitted that it took no cognisances of the average waiting time between arrest and committal. He submitted that by the end of 1991 the average waiting time between arrest and trial in the High Court was 377 days, and he based that submission on figures which Mr Casewell, who appeared for the Crown on this application, provided at the Court's request. It should be noted in passing that his figures demonstrated that these waiting times range within periods of 154 days and 553 days, only a small percentage of cases nearly approximating the average figure of 377 days. Mr Casewell suggested that the disparity is explained by the differing length and complexity of the matters set down for trial, the longer and more complex matters taking longer to come to trial. That certainly is a logical explanation for the disparity, though the experience of the present case might suggest there are at least some exceptions.

14. Other figures supplied to me showed that between 1981 and 1991 the average waiting time for trial in the High Court was gradually reduced from 243 days in 1981 to as little as 155 days in 1987, and that thereafter there was a substantial increase up to the figure of 377 days at the end of 1991.

15. In 1981 the average waiting time for trial after the filing of the indictment was 90 days, in 1987 it was 57 days and in 1991 it was 268 days. I was given no figures for the number of cases tried in 1991 as compared with 1987, but I have no doubt that in an increase in the number of cases between these dates lies one significant reason for the dramatic increase in waiting time. It is apparent from the recent creation of three new posts in the High Court, not something that is achieved overnight, specifically for the purpose of shortening waiting time between arrest and trial, that the administration has for some time been alive to the problem and is attempting to alleviate it.

16. The defendant, however, spent 526 days, a period much longer than the average waiting period, in custody awaiting trial, on a short and simple matter, and submits that his rights have been infringed and that I should not even allow his trial to begin.

17. This application is made under Article 5(3) of the Bill of Rights as well as under Article 11(2)(c). Mr Chandler does not submit that an infringement of the defendant's rights under Article 5(3) without more should lead to a stay of the proceedings, but does submit that such a infringement is a highly relevant factor in determining whether there has been a deprivation of his right under Article 11(2)(c). Clearly Article 5(3) deals with pre trial detention. It is identical to Article 9(3) of ICCPR and very similar to provisions in the European Convention on Human Rights and the American Convention on Human Rights. The Human Rights Committee dealing with Article 9(3) of ICCPR had this to say in its General Comment 8[16]:-

"3. Another matter is the toal length of detention pending trial. In certain categories of criminal cases in some countries this matter has caused some concern within the committee, and members have questioned whether their practices have been in conformity with the entitlement 'to trial within a reasonable time or to release' under paragraph 3. Pre-trial detention should be an exception and as short as possible."

18. Article 5(3) of the European Convention on Human Rights is to this effect:

"Everyone arrested or detained in accordance with the provision of paragraph 1(c) of the Article ... shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial."

19. The European Human Rights Court has defined the scope of this Article in a number of its decisions. In Wemhoff v. Federal Republic of Germany 1968 1 EHRR 55 at p.74 the court said:-

"To understand the precise scope of the provision in question, it must be set in its context.

Article 5, which begins with an affirmation of the right of everyone to liberty and security of person, goes on to specify the situations and conditions in which derogations from this principle may be made, in particular with a view to the maintenance of public order, which requires that offences shall be punished. It is thus mainly in the light of the fact of the detention of the person being prosecuted that national courts, possibly followed by the European Court, must determine whether the time that has.elapsed, for whatever reason, before judgment is passed on the accused has at some stage exceeded a reasonable limit, that is to say, imposed a greater sacrifice than could, in the circumstances of the case, reasonably be expected of a person presumed to be innocent.

In other words, it is the provisional detention of accused persons which must not, according to Article 5(3) be prolonged beyond a reasonable time".

20. In Neumeister v. Austria 1968 1 EHRR 91 at p.125 the Court said of Article 5(3) of the European convention:-

"The reasonableness of the time spent by an accused person in detention up to the beginning of the trial must be assessed in relation to the very fact of his detention. Until conviction, he must be presumed innocent, and the purpose of the provision under consideration is essentially to require his provisional release once his continuing detention ceases to be reasonable.

...

The Court is likewise of the opinion that, in determining in a given case whether or not the detention of an accused person exceeds a reasonable limit, it is for the national judicial authorities to seek all the facts arguing for or against the existence of a genuine requirement of public interest justifying a departure from the rule of respect for individual liberty."

21. A useful summary of the stance taken by the European Court in relation to the alleged infringement of Article 5(3) of the European Convention is to be found in Theory and Practice of the European Convention on Human Rights by P. Van Dijk and G.J.H. Van Hoof, 2nd Edition at p.277:-

"When is continued detention on remand to be considered reasonable? When the 'reasonable suspicion' referred to in Article 5(1)(c) (that a criminal offence has been committed) ceases to exist, the continued detention becomes unlawful and accordingly the question as to the reasonableness does not arise at all; ... the only question which remains then is whether the release has taken place promptly. But even the fact that the 'reasonable suspicion' continues to exist is not sufficient, in the Court's opinion to justify, after a certain lapse of time, the prolongation of the detention (Stogmuller v. Austria 1969 1 EHRR 155 at p.190). It has not been indicated by the Court what further criteria have to be taken into account, but it is obvious that for each individual case and at each moment the interests of the accused will have to be weighed against the interests of the protection of society and the interest of effective prosecution and criminal proceedings, and of a fair trial. In the first instance the weighing is in the hands of the national authorities, but both the Commission and the Court, here again, have clearly shown that they consider themselves competent to review for their compatibility with the Convention the grounds on which a request for release has been rejected by the national authorities ... Thus, for example, in the Neumeister case. the Stogmuller case and the Matznetter Case [Matznetter v. Austria 1969 1 EHHR 198] the Court held that the danger of flight, even if it had initially constituted a sufficient ground for the detention on remand, aftewards had ceased to exist as a ground, specifically because of the possibility of bail ... The risk of a further offence, the other ground mentioned in paragraph 1(c) (of the European Convention Article 5) was held by the Court to have continued to exist in the Matznetter Case, while it rejected that ground for prolonged detention in the Stogmuller Case ... As has already been stated above, when reviewing the lawfulness of the (prolongation of the) detention, the Court does not consider itself confined to the grounds for detention on remand expressly mentioned in paragraph 1(c), but has also accepted as such a ground the risk of subornation of witnesses and suppression of evidence. ..."

The European Court, then, considers as relevant to the determination of the reasonableness of the length of pre-trial detention the very same factors that are routinely considered in Hong Kong on any application for bail.

22. The potentially misleading wording of Article 5(3) both of the Bill and of the European Convention, which seems to suggest that should the accused person be "released" on bail then there is no further requirement that his trial be brought on "within a reasonable time", has been specifically dealt with by the European Court in a number of cases including the Neumeister Case at p.125:-

"The Court is of opinion that this provision cannot be understood as giving the judicial authorities a choice between either bringing the accused to trial within a reasonable time or granting him provisional release even subject to guarantess."

23. The Court in Wemhoff at p.74 considered such an interpretation to be "inconceivable" and went on to say:-

"This would, moreover, be flatly contrary to the provision of Art 6(1) ..."

(Article 6(1) of the European Convention requires that anyone facing a criminal charge is entitled to a."fair trial and a public hearing within a reasonable time ... and is the rough equivalent of Article 11(2)(c) of the Bill.)

24. That must be right, but though Article 5(3) deals with pre-trial detention and does not provide the remedy of a permanent stay of the proceedings, the period spent in detention prior to trial must be one of the relevant factors in determining whether the right to trial "without undue delay" has been infringed, particularly if the continued detention was not in all the circumstances justified or reasonable.

25. The likelihood that the defendant would abscond was put forward as the main objection to his bail, it being said that he had connections in the Philippines, where he was born, and which was the. destination for the nearly 5 Kilogrammes of drugs in the main charge against him. His last application for bail before the 27th October 1990 and, though he was represented, no application for bail was made at his committal on 29th January 1991. It was not until his trial date on 5th December 1991, after the Crown asked for a six week adjournment, that he made a further application for bail. There was, therefore, for most of the period while be waited for trial no judicial consideration of the need for his continued detention.

26. Be that as it may, I consider that the grounds of objection to bail, the risk of his absconding, were easily outweighed by the length of time he was required to spend in custody awaiting his trial, which I consider to be unreasonable. I therefore find that there has been an infringement of his Article 5(3) right, and though this has been remedied as he is now on bail, and in any event it is not a factor conclusive of an infringement of his Article 11(2)(c) right, it is one which will nevertheless weigh in the balance in his favour when I come to a determination of the principle issue.

27. An interesting side issue raised in the course of argument was whether s.12B of the Criminal Procedure Ordinance, which deals with applications for bail in the High Court, and to the right to make more than one only when there has been a material charge in relevant circumstances, is consistent with Article 5(3) of the Bill. But I am not required to make a decision as to that.

28. The European Court has held that there must be special attention given to the cases of those who are detained pending trial. The Court said as much in Stogmuller v. Austria at p.191:-

"Article 5(3) for its part, refers only to persons charged and detained. It implies that there must be special diligence in the conduct of the prosecution of the cases concerning such persons."

29. This application, therefore, has to do only with an alleged infringement of Article 11(2)(c) and so I must move to a consideration of all the factors which can and should be taken into account in determining whether this defendant's wait of 526 days for his trial has infringed his right under that Article. I will look to the common law jurisdictions as well as to those with constitutionally entrenched rights legislation for guidance in determining what these factors should be before considering their application to the facts of this case within the jurisdiction of Hong Kong in 1992.

30. The Bill did not create the right to trial without undue delay, nor indeed did its older and more illustrious cousins the American Constitution or the Canadian Charter. The concept of due process of law is centuries old and there is probably some merit in the claim that Magna Carta (1215) gave it birth. In an effort, for his own reasons, to encapsulate the sanctity of the fundamental rights and freedoms of his subjects within the statute Magna Carta, King John promised inter alia that:-

"No free man shall be taken or imprisoned or deprived of his freehold or his liberties or free customs or outlawed or exiled or in any manner destroyed, nor shall we come upon him or send against him, except by legal judgment of his peers and by the law of the land."

And again in the fortieth article:-

To none will we sell, to none will we deny, or delay, right or justice."

Due process of law protects against any attempt to undermine the criminal law in either its procedural or substantive roles, the concept being embodied in the common law and in many of the national constitutions, including those of the United States and Canada, and being given legislative effect in the Bill in its detailed requirements, for example, in relation to "a fair and public hearing by a competent, independent and impartial tribunal established by law." (Article 10)

31. That due process includes proper despatch received early support from Coke in his commentary on Magna Carta:-

"... the common lawes of the realme should by no meanes by delayed, for the law is the surest sanctuary, that a man can take, and the strongest fortresse to protect the weakest of all; ..." (Coke, 11 Institutes of the Laws of England - P.55)

32. The common law jurisdictions of England and Australia, neither of which has a Bill or Charter of Rights, have recognised the inherent power of their courts to protect due process against abuse and to see to it that "the Court's process is used fairly and conveniently by both sides" (per Lord Devlin in Connelly v. DPP 1964 48 Cr.App. R. 183 at 259).

33. The fairness of the process is held to include that it be concluded without undue delay. It was put succinctly by Sir Roger Ormrod when he said:-

"The question however is whether he has been so prejudiced by this delay that justice cannot now be done. Put in another way, it is whether this prosecution has become an abuse of the process of the court."

And again later:-

"It may be an abuse of the process if either (a) the prosecution have manipulated or misused the process of the court so as to deprive the defendant of a protection provided by the law or to take unfair advantage of a technicality or (b) on the balance of probability the defendant has been, or will be, prejudiced in the preparation or conduct of his defence by delay on the part of the prosecution which is unjustifiable; ..."

(R. v. Derby Crown Court Ex P. Brooks 1985 80 Cr.App.R. 164 @ 168)

34. Watkins L.J. in R. v. Bow Street Stipendiary Magistrate 1990 91 Cr.App.R. 283 at 296 was in no doubt that delay of due process was abuse of the process:-

"Delay is nowadays quite often in our view too often a feature in both civil and criminal proceedings. It has been considered by Courts high and low countless times. Mr Lawson has drawn our attention to a number of cases which show that in the Commonwealth and in the United States of America the attitude adopted in their courts to delay in much the same as ours.

We see no warrant for not following ample precedent, now well set, for the proposition that mere delay which gives rise to prejudice and unfairness may by itself amount to an abuse of the process."

35. These views were echoed in the High Court of Australia in Jago v. The District of New South Wales and others 1989 168 CLR 23, where it was held that there is not in New South Wales a right at common law to a speedy trial separate from the right to a fair trial, so that:-

"If circumstances exist in which it can be seen in advance that the effect of prolonged and unjustifiable delay is that any trial must necessarily be an unfair one, the continuation of the proceedings to the stage of trial against the wishes of the accused will constitute an abuse of that curial process." (per Deane, J. p.59)

36. The factors that should be taken into account when a court is determining whether proceedings should be stayed on the grounds that undue delay amounted to an abuse of process were dealt with in Jago. Deane, J. said:-

In his judgment in the present case, Kirby P. identified five main heads of relevant circumstances and considerations to which a court should advert in deciding whether proceedings should be stayed on the ground that the effect of delay on'the part of the prosecution is that any trial will necessarily be an unfair one in all the circumstances. As his Honour indicated, the first four of them can be traced to the opinion of the Supreme Court of the United States (delivered by Powell, J.) in Barker v. Wingo (1972) 407 US 514 (see also United States v. Von Neumann (1986) 474 US 242; Bell v. Director of Public Prosecutions [1985] AC 937, 951-952; Herron v. McGregor (1986) 6 NSWLR 252; Reg. v. Clarkson [1987] VR at p.968; Watson v. Attorney General (MSW) 1987 8 NSWLR 688 at pp.697-698). I would slightly adapt them to read: (i) the length of the delay; (ii) reasons given by the prosecution to explain or justify the delay; (iii) the accused's responsibility for and past attitude to the delay; and, (iv) proved or likely prejudice to the accusd. The fifth is the public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime (see Reg. v. Clarkson [1987] VR at p.972; Carver v. Attorney General (NSW) (1987) 29 A Crim R 24 at p.32). Those five 'heads' provide convenient reference points for answering the question whether the effect of a delay in a particular case is such as to bring about a situation where any trial will necessarily be an unfair one from the accused's point of view or a situation where the continuation of proceedings would be so unfairly oppressive that it would constitute an abuse of process. They should not, however, be treated as a code or be permitted to direct attention from the fact that what will ordinarily be involved in answering that question is the formation of a value judgment in the context of the nature and seriousness of the alleged offence and having regard to all other relevant circumstances."

37. The identification of these five factors received approval from the Court of Appeal of England in R. v. Norwich Crown Court ex p. Belsham (1992) 1 WLR 54 at p.67:-

"These observations (referring to the above passage from Jago v. NSW District Court) substantially assisted Judge Binns to reach his conclusion. We have not the slightest doubt that he was right to allow that to be so."

38. While it is true that the Bill has now given statutory expression to the right to trial without undue delay, and that that statutory expression has been provided with a constitutional guarantee, still there seems no jurisprudential reason why in considering the scope and nature of that right we should look to factors significantly, or at all, different from those applied at common law. Certainly, in Jago and R. v. Norwich Crown Court the common law jurisdictions are seen to draw upon the decisions of the courts in those jurisdictions with constitutionally entrenched rights, and the courts in these latter jurisdictions, as will be seen, have identified relevant factors which are very similar if not identical to those found appropriate by the common law courts. Not unnaturally as between the jurisdictions there is a variety of treatments given to those factors, but, all in all, very similar considerations are applied to the reasonableness of a delay whether that be in the context of an alleged abuse of process or of an alleged infringement of a constitutional right.

39. An available remedy at common law for such an abuse of the process is a stay of the proceedings:-

"The power to stop a prosecution arises only when it is an abuse of the process of the court." (per Sir Roger Ormrod in R. v. Derby, Crown Court at p.168)

40. Deane, J. expressed similar views in Jago at p.50:-

"an order that proceedings be permanently stayed will only be justified in the exceptional cases which I have indicated, namely, where it appears that the effect of the unreasonable delay is in all the circumstances that any subsequent trial will necessarily be an unfair one or that the continuation of the proceedings would be so unfairly oppressive that it would constitute an abuse of process."

41. That this remedy exists and is available to me at common law achieves a certain significance upon a consideration of s.6 of the Bill. Section 6 deals with remedies for contravention of rights under the Bill and I set it out in full:-

    "Remedies for contravention of Bill of Rights

                (1) A court or tribunal -

(a) in proceedings within its jurisdiction in an action for breach of this Ordinance; and

(b) in other proceedings within its jurisdiction in which a violation or threatened violation of the Bill of Rights is relevant,

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

(2) No proceedings shall be held to be outside the jurisdiction of any court or tribunal on the ground that they relate to the Bill of Rights."

42. That section provides inter alia that in proceedings such as the present proceedings i.e. criminal proceedings in the High Court, in the course of which a consideration of possible violation of rights under the Bill is relevant, this court may grant such remedy as it has power ordinarily to make in its criminal proceedings and as it considers appropriate and just in the circumstances. The power that I have at common law to stay proceedings is available to me in my criminal jurisdiction and is therefore available to me on this application.

43. In the United States the only remedy that is considered to be available for an infringement of the right to a speedy trial is a stay of the proceedings. This was confirmed in the ^case of Strunk v. United States 412 US 434 L Ed 2d 56 in which Chief Justice Burger giving the judgment of the Supreme Court said at p.61:-

"In light of the policies which underlie the right to a speedy trial, dismissal must remain, as Barker noted, 'the only possible remedy.'"

That is also the position in Canada:- "I am well aware that as a consequence of this decision, a stay of proceedings must be directed." (Per Cory, J. in R v Askov 1990 59 CCC (3d) 449 at 490)

44. In Europe a reduction in sentence is regarded as a possible remedy: Report of 12th December 1983 Neubeck v. the Federal Republic of Germany p.34:-

"... an excessive length of criminal proceedings can in principle be compensated for by measures of the domestic authorities, including in particular a reduction in sentence on account of the length of the procedure."

45. The special position of the European Court, in particular that it usually deals with cases after completion, or at least cases already in.progress, probably accounts for the fact that stays of proceedings are not recommended.

46. Obviously in cases where applications are made early in the proceedings, and are in anticipation of long delays, the Court can order that the matter be set down for trial as soon as possible, failing which the prosecution will not be allowed to proceed. However, when, as in this case, the matter is raised on the trial date, I cannot see that any other alternative than a stay of the proceedings could sufficiently remedy an infringement of an Article 11(2)(c) right.

47. Mr Chandler has submitted that the factors that ought to be considered when deciding upon the question of delay and its reasonableness in terms of the Bill, should not include actual prejudice in the sense of unfairness affecting the defendant's ability to conduct a proper defence at trial.

48. He submitted that the position was quite different from that at common law, and he looks for support for that proposition to the views of members of the Canadian Supreme Court, though these were minority views.

49. Articles 10 and 11 of the Bill are, together, an exact replica of Article 14 of ICCPR. The General comments adopted by the United Nations Human Rights Committee in relation to Article 14 are worthy of note:-

"1.    The Committee notes that article 14 of the Covenant is of a complex nature and that different aspects of its provisions will need specific comments. All of these provisions are aimed at ensuring the proper administration of justice, and to this end uphold a series of individual rights such as equality before the courts and tribunals and the right to a fair and public hearing by a competent, independent and impartial tribunal established by law.

....

5.    The second sentence of Article 14 (equivalent to the second sentence of Article 10 of our Bill paragraph 1), provides that 'everyone shall be entitled to a fair and public hearing'. Paragraph 3 of the article (equivalent to paragraph 2 of article 11 of our Bill) elaborates on the requirements of a 'fair hearing' in regard to the determination of criminal charges. However, the requirements of paragraph 3 are minimum guarantees, the observance of which is not always sufficient to ensure the fairness of a hearing as required by paragraph 1" [CCPR/C/21/Rev.l General Comment 13] (my parenthesis)

50. It seems to me clear that the Human Rights Committee regarded these "minimum guarantees" as constituting essential elements of the concept of "fair trial" in criminal proceedings. Since one of these "minimum guarantees" is that a person accused of a criminal offence shall be entitled to trial "without undue delay", it must follow that, in the view of the Committee, when assessing what "undue delay" involves, considerations of .fairness or prejudice should be imported.

51. In Bell v. DPP the Privy Council was considering s.20 of the Jamaican Constitution which is to this effect:-

"Whenever any person is charged with a criminal offence he shall ... be afforded a fair hearing within a reasonable time by an independent and impartial court established by law."

52. Of that provision Ld. Templeman, delivering the judgment of the Board, said:-

"Their Lordships agree with the respondents that the three elements of s.20, namely a fair hearing within a reasonable time by an independent and impartial court established by law, form part of one embracing form of protection afforded to the individual. The longer the delay in any particular case the less likely it is that the accused can still be afforded a fair trial. But the court may nevertheless be satisfied that the rights of the accused provided by s.20 (l) have been infringed although he is unable to point to any specific prejudice."

53. What the Board meant by that last sentence is made clear later in the judgment:-

Nevertheless in considering whether in all the circumstance the constitutional right of, an accused to a fair hearing within a reasonable time has been infringed, the prejudice inevitable in a lapse of seven years between the date of the alleged offence and the eventual date of retrial cannot be left out of account. The fact that the applicant in the present case did not lead evidence of specific prejudice does not mean that the possibility of prejudice should be wholly discounted."

54. Apparently, the Board envisaged a presumption of prejudice arising following a particularly lengthy delay, and being a factor to be taken into account even though the defendant could demonstrate no actual prejudice.

55. However, the Board was clearly concerned to ascertain whether in all the circumstances a fair trial was possible:-

"The courts seek to prevent exploitation of the rights conferred by the Constitution and to weigh the rights of the accused to be tried against the public interest in ensuring that the trial should only take place when the guilt or innocence of the accused can fairly be established by all the relevant evidence." (p.954)

56. The Board in that case approved and drew heavily upon the judgment of the U.S. Supreme Court in Barker v. Wingo (1972) 407 U.S. 514. That case involved the Sixth Amendment to the Constitution which provides that:-

"In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by a impartial jury ..."

Powell, J. said that the proper approach is:-

"a balancing test, in which the conduct of both ^-the prosecution and the defendant are weighed."

He identified four factors which the court should assess when determining whether a defendant has been deprived of his right to a speedy trial: (1) the length of the delay; (2) the reasons for the delay; (3) the defendant's assertion of his right; and (4) prejudice to the defendant. Describing the first factor as "a triggering mechanism", he gave as the Court's view that unless the length of the delay was "presumptively prejudicial" there was no need to enquire into the other factors.

Later he said:-

"We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process."

57. In R. v. Askov the most recent pronouncement by the Supreme Court of Canada on the right under s.11 (b) of the Canadian Charter when charged with an offence "to be tried within a reasonable time". Cory, J., giving the judgment of the majority, took four factors into account when determining whether there had been unreasonable delay: (1) Length of the delay, (2) The explanation for the delay, (3) Waiver, and (4) Prejudice to the accused.

58. The factors he took into account are little different from those suggested by Powell, J. in Barker v. Wingo, and he also recognised the need to engage in a balancing exercise:-

"The aim of this test is to provide a method based upon the underlying purposes of s.11 (b) which will permit courts to balance the applicable substantive factors in a consistent manner."

About his fourth factor, prejudice to the defendant, Powell, J. had this to say:-

"Prejudice, of course, should be assessed in the. light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defence will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or 'disappear during a delay, the prejudice is obvious. There is also prejudice if defence witnesses are unable to remember accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown."

59. The court went on to find that though a delay of five years was "extraordinary" and "too long", there were two counterbalancing factors which outweighed the delay factor, one of which was that the prejudice was minimal as the delay did not affect the fairness of the trial.

60. Recognising that there was a difference of opinion among the members of the Court on the relevance of prejudice as a factor Cory, J. in Askov said this at p.482:-

"Perhaps the differences can be resolved in this manner. It should be inferred that a very long and unreasonable delay has prejudiced the accused. ... Nevertheless it will be open to the Crown to attempt to demonstrate that the accused has not been prejudiced. This would preserve the societal interest by providing that a trial would proceed in these cases where despite a long delay no resulting damage had been suffered by the accused. Yet the existence of the inference of prejudice drawn from a very long delay will safely preserve the pre-eminent right of the individual. Obviously the difficulty of overcoming the inference will of necessity become more difficult with the passage of time and at some point will become irrebuttable. None the less, the factual situation presented in Conway serves as an example of an extremely lengthy delay which did not prejudice the accused. (In that case the court, dealing with a delay of over five years, found that Conway had himself been responsible for much of the delay and had in any event not been prejudiced or prevented from having a fair trial by the delay.) However, in most situations ... the presumption will bevirtually irrebuttable." (my parenthesis)

61. Mr Chandler relies on the dictum in that case of Lamer C.J.C. who took the view that no actual prejudice need be demonstrated by the defendant, but that prejudice would be presumed as a result of the charges being laid and would increase the longer the trial was delayed. He felt that actual prejudice to the proper conduct of the defence was an irrelevant factor when dealing with delay, and was only relevant to the question of fair.trial which he found to be a separate and distinct issue. In this context it is important to note that unlike the Bill and ICCPR the "reasonable time" provision is not obviously related to the "fair trial" provision in the Canadian Charter.

62. When applying his four factors to the facts of the case Cory, J. said this about prejudice at p.482:-

"The trial judge found that the appellants had been prejudiced by the delay. In support, he noted the lengthy period of incarceration for three of the appellants and the restrictions contained in the bail terms. These conditions of bail included curfews, a direction not to associate with the co-accused and a system of regular reporting to the police. There has been no attack on these findings. Consequently, it is impossible to say that the Crown discharged the burden that rested upon it to show that the delay caused no prejudice to the appellants. As a result, the prejudice suffered by the appellant weighs against the Crown and cannot be used to excuse the length of the delay."

I note that there is no mention by Cory, J. of prejudice that affects the accused's conduct of his defence or that might impair his right to a fair trial, the third and most important of Powell, J's categories of prejudice in Barker v. Winao, the prejudice of which Lord Templeman spoke in Bell v. DPP. and Mungroo v. R., and the prejudice that must be established in applications for a stay of proceedigns for alleged abuse of process on account of delay.

63. Article 6(1) of the European Convention is to the following effect:-

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

64. The European Court has expressed itself on the factors to be taken into account when determining the reasonableness of the length of the proceedings.

65. In Foti and others v. Italy 1982 5 EHRR313 at P 327 the court said:-

"The reasonableness of the length of the proceedings has to be assessed in each instance according to the particular circumstances. In this exercise, the Court has regard to, amongst other things, the complexity of the case, the conduct of the applicant or applicants and the conduct of the judicial authorities."

In that case the Court decided that in the case of Foti three sets of criminal proceedings against him, which took a total of 14 years and two months, violated Article 6(l). The factors identified in Foti are often repeated in many of the cases before the European Court. As recently as 27th November 1991 in the Case of Kemmanche v. France the Court said at p.19:-

"The reasonableness of the length of the proceedings is to be assessed in the light of the particular circumstances of the case, regard being had to the criteria laid down in the Court's case-law, in particular the complexity of the case, the applicant's conduct and that of the competent authorities. ...

Each stage of the proceedings must be examined with reference to these criteria."

In that case the Court found that proceedings (not then completed) which had already lasted 81/2 years constituted a violation of Article 6(1). It has to be remembered that the European Court which supervises its member nations' compliance with Convention rights is in a different position from courts in the United States, Canada or Hong Kong, which are dealing only with process in their own jurisdictions..

66. In line with the views of the United Nations Human Rights Committee expressed in their General Comments on Article 14(3) of ICCPR I conclude that the right to trial without undue delay is but one of the panoply of minimum guarantees that are paraded by Article 11(2) of the Hong Kong Bill of Rights to ensure'that in the determination of any criminal charge everyone shall be entitled to the "fair ... hearing" promised by Article 10.

67. That conclusion must of course influence the way that I approach my task, since the determination moves from a simple objective assessment of the resonableness of the actual length of the delay in criminal.proceedings to the outcome of a critical analysis of the reasons for the delay and the consequences of that delay for the fairness of the proceedings.

68. I respectfully agree with Lord Templeman when he said in Bell v. DPP:-

"Their Lordships acknowledge the relevance and importance of the four factors lucidly expanded and comprehensively discussed in Barker v. Wingo. Their Lordships also acknowledge the desirability of applying the same or similar criterial to any constituion written or unwritten, which protects an accused from oppression by delay in criminal proceedings. The weight to be attached to each factor must however vary from jurisdiction to jurisdiction and from case to case."

69. I can, therefore, do no better than identify the length of the delay, the reasons for the delay, the attitude of the parties, and prejudice to the defendant as factors to be considered in the determination of this issue. I am also satisfied that there is a public interest factor that should not be overlooked. I do not believe that that is an exhaustive list of all the relevant factors, but it does provide a sound basis for proceeding to a determination so long as all other relevant circumstances are taken into account and in each case it is allowed that its peculiar facts may well give rise to the need for other or different considerations.

70. It is most unlikely that this application would have been made had not the defendant spent approximately eighteen months waiting in custody before his trial. That delay is the single factor that raises a presumption of unfairness and so is "to some extent a triggering mechanism" (Baker v. Wingo). There can be no doubt that that is a very long delay, and, in my view, prima facie excessive, given the simple and short nature of the issue to be tried, that the defendant was in custody, and given the resources that could be available to ensure a more efficient management of our criminal process in Hong Kong. Were it the only factor to be considered then there would be a successful outcome for this application. However, while a finding that the delay is prima facie excessive might be a condition precedent upon an inquiry as to the infringement of the Article 11(2)(c) right, that outcome will not result from a consideration of any single factor, but will emerge as a consequence of the interplay between all relevant factors.

71. There is a whole body of jurisprudence in other jurisdictions devoted to the demarcation of the delay, and while I can foresee that some decisions on the length of the delay might be difficult, in this case the issue is a simple one. The defendant was arrested on 26th September 1990 and his eventual trial date was 5th March 1991. I have earlier alluded to Mr Chandler's concession that the period I have to consider ends on 4th March 1992. There is, therefore, in this case no doubt that the period of delay is between the arrest of the defendant i.e. 26th September 1990 and 4th March, 1991, or 526 days.

72. There is no dispute about the reasons for the delay, certainly up to 5th December 1991. The position simply was, I was told, that no earlier trial date could be provided because there were not sufficient judges available for the trying of criminal cases. Delays occasioned by the lack of institutional facilities cannot lie at the feet of the defendant, and while they are not usually the responsibility of the prosecuting authorities, they are nevertheless matters for the administration and therefore will fall upon the Crown.

73. Some delay is of course inevitable as there is within every society a limit to the financial and personnel resources, and to the facilities that can be devoted to the administration of justice. As well as which some allowance must also be made for a temporary shortfall in these resources and facilities due to a change of circumstances, such as a significant increase in the criminal workload. However, the right to trial without undue delay must not be thwarted by systemic deficiencies, and there must be a limit upon. the use of institutional resources to justify delays which are prima facie excessive. That principle was expressed in concise terms by the European Court in Baageta v. Italy 1957 10 EHRR 326 at p.330:-

"The Court agrees with the Commission. it points out first of all that the Convention places the Contracting States under a duty to organise their legal systems so as to enable the courts to comply with the requirements fo Article 6(l) including that of trial within a reasonable time; nonetheless, a temporary backlog of business does not involve liability on the part of Contracting States provided that they take, with the requisite promptness, remedial action to deal with an exceptional situation of this kind."

74. The Court found that the Italian Government's efforts were not made until seven years after the proceedings began, and so it was held that there had been a violation of Article 6(1).

75. Lamer, J. in Mills v. R. 1986 26 CCC (3d) 481 at p.555 expressed a similar view, though in much more trenchant terms:-

"Our legislators have, by the entrenchment of s.11(b), established as a fundamental societal priority the maintenance of an effective and prompt system for the administration of criminal justice. There can be no assumption that the constitutional right to be tried within a reasonable time must conform to the status quo; rather, it is the system for the administration of criminal justice which must conform to the constitutional requirements of the Charter. We cannot shrink from our task of interpreting the Charter in a full and fair manner, even when, and perhaps especially when, we are confronted with the possibility of resulting significant institutional adjustment."

76. The justification for delay in criminal proceedings may relate to the length and complexity of the proceedings and to the genuine need for both prosecution and defence to spend lengthy periods of time in preparation for the trial. Within this jurisdiction many such cases have been tried, and periods of delay much longer than in the present case were not thought to be unreasonable. If a few such cases are approaching trial simultaneously this will place significant extra pressure on the available judicial resources, and it is likely that delays will be occasioned throughout the system. Such a temporary state of affairs cannot justify the bringing to a premature end of criminal proceedings for reasons other than that the Crown have failed to discharge the burden of proof. However, should this temporary state of affairs become structural, and should the lack of adequate institutional resources come to render the right to trial without undue delay "a pious platitude", if I may, with respect, borrow an expression Silke, V-P. used in Sin Yau Ming, judicial intervention to stay criminal proceedings becomes more likely.

77. The situation in Hong Kong has been deteriorating over the past two years and has now become notorious. Delays of eighteen months between arrest and trial are not unusual and while such delays are understandable in cases of some complexity, it is, in my view neither understandable nor excusable in cases as short and simple as the present one. As well as which this defendant has spent the whole of the waiting period in custody and no "special diligence" (Stoamuller v. Austria) appears to have been exercised in bringing his case to trial, as was the European Court's strong recommendation for custody cases.

78. I was given no satisfactory explanation for the delay in this case. No attempt was made by the Crown to explain in any detail the present criminal case backlog, or the failure of the system to give priority to custody cases. I was simply asked to accept that this defendant spent these months in custody awaiting trial because there were not enough judges.

79. However, the prosecution itself was responsible for part of the delay. Until 5th December 1991 the original date fixed for trial the prosecution could not be held responsible for the waiting period between arrest and trial. The case was handled by the prosecution with proper despatch and it was no fault of theirs that the earliest trial date available was almost one year after committal. However, when the matter came to trial, and Mr Chandler indicated that an application under the Bill of Rights would be made on the defendant's behalf, the Crown asked for a six week adjournment so that a counsel from the Attorney General's special Bill of Rights unit could prepare to answer that application. The Crown then compounded that impertinence by resisting an application for bail. Due to listing difficulties created by this adjournment, a new trial date could not be found till 5th March.

80. There can be no justification for such a delay. The Court has a right to expect that the prosecution will be ready to answer any defence application at once or at least within one or two days. As the Attorney General has set up within his Chambers a special unit to deal with Bill of Rights matters, I find the prosecution's actions inexplicable.

81. But there are counterbalancing factors under this head. I earlier referred to the creation of new judiciary posts specifically to help reduce the delays, and I am satisfied that the processing of that measure must have been ongoing for some time. As well as which it has to be borne in mind that approximately nine months of the delay occurred prior to the Bill coming into effect. It is trite that the Bill did not create the right to trial without undue delay, which was in existence upon the defendant's arrest, and it is of course true that the same administration which introduced the Bill must bear responsibility for these delays in criminal proceedings. It would, however, be unrealistic to pretend that the coming into existence of this Bill did not herald a quite novel atmosphere of heightened awareness in the area of human rights. And while some foresight of that, and the consequences of infringing these rights, could have been expected from the administration, it is, in my view, asking too much of any administration to have achieved a complete understanding of the full implication of these new measures, and to have adjusted to the extra dimension that would be given to the administration's responsibilities in the area of human rights immediately upon the passing of the legislation and in the absence of a reasoned and authoritative judicial pronouncement from the Court of Appeal on the meaning and extent of the citizen's newly enshrined right to trial without undue delay.

82. Lamer, J. suggested that as Mills v. R. was the Canadian Supreme Court's first opportunity to establish guidelines for the application of the right to trial within a reasonable time, there be a transitional period "to enable the courts and governments to properly discharge their burden under s.11 (b) ...", because up to the delivery of the judgment in Mills they would be unaware of the parameters of the standard that judgment applied.

83. Mr Casewell has suggested that such a transitional period would be right and appropriate here. The Bill, he argued, came into effect only 9 months ago and there has been no Court of Appeal pronouncement on the application of Article 11(2)(c). As well as which he submitted, the administration has not had sufficient time to adjust to these new procedures.

84. Mr Chandler on the other hand argued that it was the administration who introduced the Bill and it ought to have been prepared for such applications. He said that to introduce such a concept would effectively be to legislate, which is not within the Court's jurisdiction. He pointed out that such a transitional period had in s.14 of the Bill been provided for the paramountcy of certain scheduled ordinances for a period of 1 year after the Bill became law, so that the Bill's silence on the sort of transitional provisions suggested by Lamer, J. should be seen as an expression of the legislature's intention that no such transitional arrangements should exist.

85. It is not for me to insinuate such a concept of transition into the construction of Article 11(2)(c), but what I must do in this delicate balancing exercise is ensure that all relevant factors are placed on the scales, and as I see it, this is such a factor.

86. The third relevant factor, the attitude of the parties, need exercise me only briefy. I have already dealt with and commented upon the prosecution's part in this delay. The defendant was in no way responsible for the time he had to wait in custody for his trial. It could not be said that his failure to apply to a High Court Judge for an early trial somehow indicates his acquiescence in the unsatisfactory state of affairs. As an unrepresented defendant languishing in custody awaiting trial it could not be expected of him that his appreciation of the new status given to his right to trial without undue delay would be any greater than that of the administration. Indeed he had already been in custody for some six months since his committal when the Bill became law, and it is at least unlikely that copies of the Bill were distributed and fully explained to the occupants of our correctional institutions.

87. The fourth factor that I identified, following the guidelines laid down in other jurisdictions, was prejudice to the defendant. Earlier I referred to the United Nations Human Rights Committee's General Comments on Article 14 of ICCPR, the source for Articles 10 and 11 of the Bill. Clearly, in my view, that Committee hold the view that the right to trial without undue delay is a corollary right of the right to a fair trial. 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.

88. That unfairness can be brought about by a variety of circumstances, not least of which, of course being the death or disappearance of witnesses or evidence vital to the defence during the waiting period.

89. The length of the delay itself might affect the fairness of the trial if it becomes so inordinate that to proceed to trial thereafter would be oppressive. It is Lord Templeman's "presumptively prejudicial" period, (Bell), it is the "very lengthy delays" such that "they cannot be justified for my reason" (Cory, J. in As ov p.483). In such cases Cory, J. allows that "it will be open to the Crown to attempt to demonstrate that the accused has not been prejudiced", but he goes on to say that "the inference of prejudice drawn from a very long delay ... at some point will become irrebuttable". Lord Templeman obviously had the same view when he said in Bell at p.952:-

"... in considering whether in all the circumstances the constitutional right of an accused to a fair hearing within a reasonable time has been infringed, the prejudice inevitable in a lapse of seven years between the date.of the alleged offence and the eventual date of retrial cannot be left out of account. The fact that the appellant in the present case did not lead evidence of specific prejudice does not mean that the possibility of prejudice should be wholly discounted."

90. Earlier he indicated what he meant by specific prejudice when he said:-

"The applicant did not allege the death or disappearance of a witness." (Bell p.952)

91. A person charged with a criminal offence and awaiting his trial undergoes a period of extreme stress and anxiety, with personal, family, employment and social circumstances likely to be significantly and adversely affected; and of course much more so if held in custody. The purpose of Article 11(2)(c) is to ensure that this unhappy period is not unduly long. That is all, of course, apart from the custody factor, simply an incidence of the right to be tried as a person presumed innocent, and is suffered by all defendants no matter how long is the delay. However, should the waiting period become excessive, having regard to all relevant circumstances, and the "exquisite (pre-trial) agony" (Cory, J. in Askov p.474) become too much for any reasonable man to bear, then it must also become oppressive and unfair to allow these criminal proceedings to continue. That proposition must achieve added validity if the defendant is in custody pending trial. To find otherwise would, in my view, be to render meaningless the provision of Article 11(2)(c).

92. Mr Chandler submits that as the defendant was in custody for the whole of the waiting period, an already excessive delay becomes oppressive, and any subsequent proceedings unfair. He concedes that he can point to no other prejudicial factor which would or might affect the fairness of the defendant's trial.

93. In my view no determination of this issue can properly be made without regard to the possible effect that the delay might have on the fairness of the trial, whether that be through an accumulation of personal circumstances, including pre-trial custody, that result from a particularly lengthy delay which the Crown cannot justify, and which eventually become oppressive, or though circumstances which because of the delay actually affect the defendant's ability to properly defend himself.

94. The fifth of my factors is the public interest factor. This is referred to in the American and Canadian authorites as the societal interest and is seen by Powell, J. as an:-

"interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused".

He sees delay as increasing the risks of societal disadvantages such as pre-trial crime committed by defendants and increasing the costs of maintaining remand prisoners in custody.

Cory, J. sees it in this way:-

"Although the primary aim of s.11 (b) is the protection of the individual's rights and the provision of fundamental justice for the accused, none the less there is, in my view, at least by inference, a community or societal interest implicit in S.11 (b). That community interest has a dual dimension. First, there is a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law. Secondly, those individuals on trial must be treated fairly and justly. Speedy trials strengthen both those aspects of the community interest."

95. Article 11(2)(c) does not confer an absolute right. Indeed the enjoyment by individuals of rights and freedoms irrespective of the community's capacity to maintain them, would inevitably result in these rights and freedom becoming meaningless as the community's structures disintegrate. A balance must be maintained between the rights of individuals and the overall interests 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 is more likely to interfere with the community's respect for the system of criminal justice than to see the criminal process compromised, and transgressors of the law freed, untried, through institutional shortcomings.

96. 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.

97. I must therefore, decide, whether in light of all these relevant considerations what I regard as a prima facie excessive delay has in fact infringed the defendant's right to trial without undue delay. I do not think so.

98. Firstly, though I do consider the delay to be prima facie excessive, I find within the other factors circumstances of mitigation so that I do not conclude that the delay was unreasonable. I include among these circumstances that nine months of the delay occurred before the Bill became law, and I have outlined my reasons for giving some allowance for the administration's tardiness in responding to the demands of its own rights' legislation.

99. There has been prejudice to the defendant occasioned by this. delay as he was in custody for 526 days while presumed innocent, and so the whole of his normal life has been seriously disrupted. However, I am satisfied that the fairness of his trial has not been compromised so that his ability to defend himself has been impaired, or because of an inordinate delay that would render oppressive any attempt to continue the proceedings.

100. There is also on the scales the fact that the defendant faces extremely serious drugs charges in this jurisdiction in which the incidence of drug offences is uncomfortably high. There is a community interest in having the defendant's guilt or innocence determined by due process.

101. The application is refused.