SECRETARY FOR JUSTICE v. CHEUNG CHUNG CHIT

CACV 206/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 206 OF2003

(ON APPEAL FROM HCAL NO. 172 OF 2002)

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1. This was an appeal from a judgment of Hartmann J given on 19 June 2003 on an application for judicial review. The judge had granted an order of certiorari bringing up and quashing the decision of HH Judge Chua dated 6 September 2002 whereby the District Court Judge had ordered a permanent stay of criminal proceedings against the respondent and discharged the respondent. Hartmann J ordered that the matter should be remitted to the District Court for a fresh determination. At a subsequent hearing he ordered that there should be no order as to costs.

2. At the conclusion of the hearing of this appeal this court dismissed the appeal and made an order for costs in favour of the applicant.

Background

3. On 3 April 2002 the respondent was arrested in the lobby of a hotel in Kowloon. He had come to the reception desk and asked to see a man named Nakamori. When the respondent was searched, an envelope was found on him which contained 88 notes. As the judge below put it, those would have appeared to a layman to be US dollar notes each having a face value of one million US dollars. There is no dispute that those notes were counterfeit. The respondent was charged with possessing false instruments contrary to section 75(1) of the Crimes Ordinance, Cap. 200, and in the alternative, with possessing false instruments contrary to section 75(2) of the same Ordinance.

4. Although the trial was due to commence on 4 September 2002 it was adjourned until the following day for procedural matters to be attended to. On the following day, Mr Cheng Huan SC, who appeared on behalf of the respondent, made an application for what the judge understood to be a permanent stay of the prosecution. That application was made on the basis that there was a witness, who would be of considerable assistance to the respondent, who declined to come to Hong Kong to give evidence. That person, Wang Li Xin, lived in the mainland but had made a witness statement.

5. Material parts of the statement were reproduced in Hartmann J's judgment. It is unnecessary to reproduce those passages here. It suffices to say that the effect of that statement is that Mr Wang had asked the respondent to bring a packet containing the notes to Hong Kong on behalf of some acquaintance of Mr Wang. Mr Wang's statement was to the effect that the respondent had not had an opportunity of examining the contents of the packet when he gave it to him other than on a very cursory basis and that Mr Wang himself had believed the notes to be genuine. Mr Wang's statement also contained the assertion that he was unwilling to come to Hong Kong to give evidence because he was apprehensive that he himself might be arrested and he had parents and children who would be left alone if that were to happen.

6. On 4 September 2002 solicitors acting on behalf of the respondent served a notice pursuant to section 65B of the Criminal Procedure Ordinance, Cap. 221, of the intention to tender that statement of Mr Wang at the trial of the respondent.

7. In giving her ruling that there should be a stay of the process HH Judge Chua considered the contents of Mr Wang's statement. In coming to her conclusion, after reviewing the facts, she said in paragraph 15 of her ruling:

"These details add verisimilitude to what is said and I am inclined to find the explanation credible."

In paragraph 19 of her ruling the judge said:

"Even if D3 elected to go into the witness-box to explain how much he saw and what his belief was of the contents of the envelope, in my view Wong's testimony would go a long way in establishing the defendant's credibility. Wong's witness statement is not admissible in evidence. D3 is in no position to force Wong to come to Hong Kong. I see this as an obstacle in the way of a fair trial and one which cannot be remedied by 'remedial measures available at the trial' per Ribeiro PJ in Lee Ming Tee's case."

8. In the court below, Hartmann J considered, first of all, the jurisdiction to grant a stay. Basing himself on the Court of Final Appeal's decision in HKSAR v Lee Ming Tee and Another [2001] HKLRD 550, the judge approached the matter on the basis that a stay should only be granted as a matter of last resort if a fair trial had become impossible in circumstances which would make the continuance of the prosecution an abuse of the court's process. Importantly, however, the judge went on to consider the position of Mr Wang's witness statement and came to the conclusion that the District Court Judge had been in error in holding that the statement was inadmissible. It was not disputed that Mr Wang's witness statement met the necessary formal requirements of the Ordinance. Nor was it disputed that when the order for a stay of proceedings was made neither the prosecution nor the respondent's co-accused had objected to the admissibility of the statement. The District Court Judge's view that the statement was inadmissible appears to have been as a result of an interchange between the District Court Judge and Mr Cheng in the course of submissions. The interchange was simply:

"COURT: Yes. Now, I just need you to address me on this point, Mr Cheng Huan: Wong's statement would not have been admissible.

MR CHENG: No."

9. That, as Mr Justice Hartmann pointed out in paragraph 25 of his judgment, was at that time incorrect in law. The section 65B application had not yet been resolved. At that time, there had been no objection from the prosecution. As Mr Zervos SC, who appeared on behalf of the applicant, pointed out in the course of submissions in this court, unless and until a notice was served in accordance with section 65B(2)(d), Mr Wang's statement was admissible in accordance with the provisions of the Ordinance. In those circumstances the District Court Judge's ruling was fundamentally flawed since it was based on a misapprehension as to the law and the suggestion that there could not be a fair trial was, at the very least, premature. In view of that, Hartmann J did not go on to consider, as well in my view he might have done, whether the decision of the District Court Judge was Wednesbury unreasonable.

This Appeal

10. In this court Mr Cheng adopted the position that the statement by Mr Wang was "capable of being admissible" at the time when the District Court Judge gave her ruling on 6 September 2002. His submission was that the statement would be admissible if the prosecution did not object to it.

11. Quite apart from Mr Zervos's submission that unless and until there had been an objection the statement was admissible in accordance with section 65B, Mr Cheng's submission demonstrates that the judge's view of the law was in error: without even inquiring of the prosecution or the co-accused, there was no basis for the suggestion that there could not be a fair trial on the footing that the statement would "not have been admissible". In short, in my view, the respondent's appeal in this matter was doomed to failure on their own argument.

12. Although Mr Zervos argued that the applicant should have had its costs in the court below, this court did not accede to that application. Hartmann J had exercised his discretion to deny the applicant the costs in his court because he considered that the prosecution should have given the District Court Judge assistance in respect of the question of the admissibility of Mr Wang's statement. That was a valid basis on which it was open to the judge to exercise his discretion. In those circumstances this court did not consider it right to interfere with the exercise of the judge's discretion.

Hon Le Pichon JA:

13. I agree.

Hon Yuen JA:

14. I agree.