R. v. NG KAM FUK

IN THE DISTRICT COURT OF HONG KONG
CRIMINAL JURISDICTION
CASE NO. 104 OF 1992

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Ruling on application to stay

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1. I have before me an application by Mr. Midgley on behalf of the Defendant to stay these proceedings on the ground that the prosecution are unable to call a witness who is named on the back of the charge sheet.

2. The common law principles in relation to such a submission are well-established. I refer to Archbold 43rd edition paragraph 4-183 and Bruce and McCoy 2nd edition paragraph 9-38.

3. The charge against the Defendant is robbery. It is a taxi robbery case. There is the usual written Opening for the Crown. It is dated 1 October 1992 and signed by Mr. Jackson Poon who appeared as counsel on fiat for the Crown. Attached to the opening is a list of prosecution witnesses and a list of exhibits. Amongst the prosecution witnesses listed is a PC 4928.

4. The trial started on the morning of Friday 9 October 1992. In opening the case for the prosecution Mr. Poon informed me that PC 4928 would not be called. He had emigrated, apparently in August 1992. On 21 June 1992 he had signed a form to attend as witness in the trial of the case. The form was handed up to me. I was informed by Mr. Poon (who took instructions on the point) that, when PC 4928 had resigned, he would have been seen by his commander and would have been asked if he had any outstanding matters. In this case the PC had not informed the commander about his involvement in this case, so the commander had not informed the officer in charge of the case. The latter had checked the matter a few days before the trial and found that the PC had emigrated.

5. It is not for me to apportion any blame for this state of affairs and it is quite understandable how the situation has arisen, but the fact of the matter is that the Defence was not informed that PC 4928 would not be a witness until Friday morning. Apparently as a result of PC4928's absence, the Crown, so I am informed, does not seek to adduce in evidence a cautioned statement taken by this officer from the Defendant. Also, it was necessary to make some amendments to the Opening and this was done by covering up the relevant parts. The Crown proceeded to call the taxi driver victim. His evidence was completed mid-afternoon and the Crown then called PC 4284. This office was not on the list of witnesses. It appeared from P.W.2's evidence that the missing witness was the person who arrested the Defendant. When P.W.2 had given his evidence in chief, Mr. Midgley asked for time to consider his position and foreshadowed a submission based on the common law principles which I have referred to in paragraph 2 of this Ruling and on the Hong Kong Bill of Rights. Those submissions were made yesterday.

6. As Mr. Midgley indicated the situation is unusual in the application being made at this stage of the trial rather than before the Crown had opened its case. This is not just a technical point because I have now heard the evidence of the victim (and am therefore in a position to assess his evidence) and the evidence in chief of P.W.2.

7. Had the application been made at the beginning of the trial I would have had to look at the missing witness' statement in a vacuum. In the event I am able, if that is permissible, to consider the statement in the context of the evidence so far.

8. I have considered whether, by allowing the prosecution case to go so far, Mr. Midgley should have been excluded from making his submission. He could have raised the issue before, immediately after Mr. Poon indicated that PC 4928 would not be giving evidence. In the result he has had the advantage of hearing P.W.2's evidence in chief, though no doubt there was no surprise in that. I have been informed that Mr. Midgley was provided with P.W.2's witness statement mid-morning on Friday. The only advantage that I can see that Mr. Midgley has gained by hearing the evidence of P.W.2 is that it allows him to argue before me that P.W.2's evidence about some circumstances of the arrest of the Defendant is different from that contained in PC 4928's witness statement. That apparent inconsistency in the prosecution evidence Causes Mr. Midgley, and I must say myself, some concern and in my view rather than P.W.2's evidence excluding Mr. Midgley from making his submission it rather enforces it. Accordingly I rule that Mr. Midgley is not excluded from making his submission on the ground that the trial has reached the stage it has.

9. I should say that I did suggest to Mr. Poon that an adjournment to enable PC 4928 to be called at a later date was one way of dealing with the problem that had arisen, but he elected to proceed.

10. Mr. Midgley argued that the principles I have referred to in paragraph 2 above about witnesses listed on the back of an indictment apply in the circumstances of this case where the list of prosecution witnesses is annexed to the Opening. Mr. Poon did not argue to the contrary. In my view those principles do apply to the present case and I proceed on that basis.

11. Mr. Midgley began his submission by referring me to Reg. v. Derby Crown Court, ex parte Brooks 80 Cr. App. R. 164, 169 for the proposition that the ultimate objective of this discretionary power (Power to stay proceedings) is to ensure that there should be a fair trial according to law which involves both fairness to the defendant and the prosecution. I shall refer to this principle in the context of the present situation later. He then referred me to The Queen v. Chiang Shi-hui, now reported in [1992] HKDCLR 5, for an example of where the Court had granted a stay because of the death of a material witness.

12. The common law principles were, Mr. Midgley submitted, crystallized in the Hong Kong Bill of Rights Article 11(2)(e) in the right of the accused to examine the witnesses against him and in the broader right to a fair trial contained in Article 10.

13. On the common law principles themselves, Mr. Midgley submits that fault on the part of the prosecution is a relevant factor. He referred me to The Queen v. Takeshi Machiya Criminal Appeal No. 332 of 1989 where the trial judge had refused to stay proceedings where witnesses were absent, but the conviction was quashed on the ground that the trial judge had taken into account in the exercise of his discretion factors which he should not have done. As appears from Machiya the common law principles to be applied are stated in R.v. Cavanagh and Shaw [1972] 1WLR 676 CA as follows:

".... provided the prosecution had taken all reasonable steps to secure the attendance of witnesses named on the back of the indictment, the Court had a discretion to permit the trial to proceed if there was no injustice to the defendants and, since in the circumstances it had been to the defendants' advantage that B had not been available to give evidence, the judge had rightly exercised his discretion to allow the trial to proceed".

14. In the case the "missing" witness was in India and ill.

15. Mr. Midgley submits based on the above quotation that it is a pre-condition to the exercise of the discretion that the Crown took all reasonable steps to secure the attendance of the witness. This is where the element of fault comes in. He says the Crown have not taken all reasonable steps here. The prosecution could have asked for a trial date before PC 4928 emigrated. Or they could have sought an adjournment to bring PC 4928 back to Hong Kong. As the Crown has not taken all reasonable steps, there is, submits Mr. Midgley, no discretion to allow the trial to proceed. Mr. Midgley submitted that it was interesting that the discretion was not phrased as a discretion to stay, but in the reverse as a discretion to allow the trial to proceed if there was no injustice to the defendant in so doing. He submitted that this placed a very heavy burden on the Crown. On the question injustice to the Defendant, Mr. Midgley submitted that considering the matter as it now stood on the testimony heard to date I might well conclude that the absence of PC 4928 caused an injustice to the Defendant. I was then invited by both Counsel to read PC 4928's witness statement. The local authorities cited in Bruce and McCoy indicate that the judge should examine-the statement of the missing witness and I have done so.

16. Mr. Midgley submitted that there was inconsistency between the evidence of PW2 and PC 4928's statement as to whether or not there was a struggle when the Defendant was arrested and whether or not admissions were made by the Defendant to PC 4928 after his arrest. This went to the credibility of PW2. I should only allow the trial to proceed if I concluded that the missing officer could (not would) not have been of assistance to the Defence.

17. In response to my own question as to whether in exercising my discretion I need to make a preliminary assessment of the prosecution evidence to date or should look only at PC 4928's statement Mr. Midgley said that I had to assess the evidence, but without making any finding of fact at this stage on the credibility of the witnesses.

18. Mr. Poon submitted that there were no real inconsistencies in the evidence of PW2 and the statements in PC 4928's witness statement. He also submitted that I should treat PC 4928's statement in isolation in considering the issue of injustice. On the issue of the Crown having taken all reasonable steps to secure the attendance of the witness he submitted they had. Through no fault of their own they had not known that PC 4928 would not be available until last week. They only had PC 4928's address and no telephone number. To seek an adjournment to bring him over would cause unreasonable delay and expense. Mr. Poon took me to the extract from Cavanagh and Shaw quoted at P.13 of Machiya with regard to the relevant consideration in exercising the direction. He submitted that the Defence would not want to call PC 4928; there was no chance of securing his attendance within a reasonable time; the prosecution was prepared to proceed in the witness' absence; the witness' evidence would not have been likely to assist the Defendant, it was more likely to damage the Defendant's case. Mr. Poon submitted that the absence of the missing witness was an advantage to the Defendant, rather than a disadvantage. And, by way of illustration, he referred to the admissions alleged in the statement to have been made to PC 4928. By not calling PC 4928 these admissions are not in evidence and thus the Defendant had gained an advantage.

19. I have noted the decision in Att Gen v. Ma Chiu Keng [1988] 2 HKLR 64 referred to in Machiya as to the approach the trial judge should take in this situation, i.e. have a form of preliminary enquiry and consider all the relevant evidence before coming to a decision. In my view, some evidence being now before me I must consider PC 4928 's witness statement against the background of that evidence. I therefore have taken into account the evidence of PW1 and PW2. Without prejudging that evidence, I can say that PW1's identification evidence in relation to the Defendant was not wholly satisfactory and that PW2's evidence in chief appears not to be wholly consistent with can say that the Defendant has gained some advantage by the absence of PC 4928, in so far as it appears that there will be no evidence of some admissions alleged to have been made by the Defendant to that officer at the time of arrest. Also the prosecution have not sought to adduce a cautioned statement. I can also say that there are certain parts of PC 4928's witness statement, in particular with regard to the period from when the 3 men jumped out of the taxi to when the Defendant was apprehended which in my view require clarification if the officer had given evidence in those terms.

20. I now give my Ruling.

21. In my view Mr. Midgley is wrong in his interpretation of Article 11 (2) (e) of the Hong Kong Bill of Rights. That paragraph gives a right to the accused to cross-examine witnesses who have given evidence against the accused. In my view it has no relevance to the "missing" witness situation. On the other hand I accept Mr. Midgley's submission that Article 10 (the right to a fair trial) applies to the missing witness situation. I have expressed my view on the burdens of proof on applications under Article 10 in my ruling in R. v. Fung Shu-sing District Court Criminal Jurisdiction Case No. 777 of 1991 (see Bill of Rights Bulletin volume 1 No.4 pages 34-36). It is for the Defendant to raise on the balance of probabilities a prima case of infringement of the Article and once that has been established the prosecution has the evidence of satisfying the Court, on the balance of probabilities, that notwithstanding the alleged infringement of Article 10 the Defendant has not been so prejudiced that a fair trial cannot be achieved. I find a prima facie infringement here, and I am satisfied that a fair trial cannot now be achieved. I reach that conclusion for the following reasons. As already indicated, this is an unusual application. Unlike Cavanagh and Shaw and Machiya, the application to stay is being made not at the commencement of the trial, but well into the trial. After PW1's evidence, identification has become a major factor. The missing witness is PC 4928 who was the arresting officer, the man who chased the Defendant from the crashed taxi to the entrance to Sam Tung Uk Village, who arrested the Defendant and makes no mention of a struggle in his statement and who in his statement mentions admissions made to him by the Defendant. PW2 was also in the chase and he said that the Defendant resisted arrest, but said nothing about any admissions. In my view too much should not be made of these "inconsistencies", but taken as a whole against the unclear identification in PW1's evidence it seems to me that the Defendant should be given the opportunity of testing PW2's evidence against that of PC 4928 and therefore it would be unfair to the Defendant to continue this trial in the absence of PC 4928. I also take into account, as put to me by Mr. Midgley, that he and the Defendant prepared for this trial on the basis of the missing officer being a witness and on his witness statement. There were two principal witnesses for the prosecution - the victim and the arresting officer. The victim's evidence is not strong and the arresting officer has been replaced by a team colleague. As Mr. Midgley put it one half of the equation is missing.

22. As I indicated in R. v. Funq Shu-sing we have the regrettable position that the burden of proof in regard to a HKBOR application may be different from the burden of proof applicable to a common law application based on the same submission and the same facts. In Fung Shu-sing there were applications to stay under HKBOR and common law for delay in prosecution. Here we have applications to stay under HKBOR and common law for the missing witness situation. The submissions and facts are the same, but the burdens of proof are different. Under the HKBOR application the burden of proof is as indicated above (The fair trial test). But with regard to the common law application the position is different. Cavanagh and Shaw seems to confirm a set of principles different from those applicable to common law stay principles generally. Those general principles are illustrated by the Derby Crown Court case and the test is also the fair trial test which is the same as under the HKBOR. Cavanagh and Shaw was decided 20 years ago. There has been a glut of stay applications in recent years which have established the fair trial test, a test which incorporates elements of fault, advantage/disadvantage and injustice. If I were free to do so, I would have preferred to apply the general fair trial principle to the missing witness situation. The fair trial principle makes the fault element part of the test rather than a pre-condition to it. But in my view I am not in a position to do so. The special criteria expounded in Cavanagh and Shaw were accepted by the Court of Appeal in Machiya and I must follow the principles set out in Cavanagh and Shaw. I now apply those principles to the present common law application.

1. I am not satisfied that the prosecution has taken all reasonable steps to secure the attendance of PC 4928. His unavailability was only discovered at the last moment, when it was too late to make contact with him. In fact no steps have been taken to secure his attendance, because, as Mr. Poon informed me from the Bar Table, those with the carriage of the matter had expected PC 4928 to turn up. When they checked a few days before the trial started and found out he had emigrated it was too late to do anything about it and PW2 was substituted. This is not any criticism of those involved in the case. It is just an unfortunate turn of events.

I accept Mr. Midgley's submission that the taking of reasonable steps to secure attendance is a pre-condition to the Court's discretion to permit the trial to proceed. Having found that the prosecution has not taken all such reasonable steps, I must therefore order a stay of the proceedings.

2. Even if I had been satisfied that the prosecution had taken all such reasonable steps, I would not have exercised my discretion to permit the trial to proceed.

I have already indicated what I perceive to be the comparative advantages and disadvantages to the Defendant flowing from PC 4928's absence from the trial. Advantage and disadvantage are not the sole criteria, nor is it simply a matter of balancing one against the other. The ultimate test is whether or not there is injustice to the Defendant in allowing the trial to proceed in the absence of the witness. The injustice test seems to me to be the same as the fair trial test. I have already indicated in relation to the BOR submission that I do not consider that a fair trial can now be achieved in the absence of PC 4928 and accordingly, since in my view the same test applies in relation to the common law submission, I find that a fair trial cannot now be achieved in the absence of PC 4928.

23. Accordingly, I rule in favour of Mr. Midgley's applications and order the trial be stayed.