THE QUEEN v. CHARLES CHEUNG WAI BUN

1989, No. 160

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H E A D N O T E

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    Delay in Criminal Trials. Application for permanent stay of the proceedings on the grounds of abuse of process and under Articles 10 and 11(2)(c) of the Bill of Rights. Delay of ten years since the events, and three years nine months after arrest. Stay ordered.

1989, No. 160

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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R U L I N G

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1. This was an application to stay the criminal proceedings against Charles Cheung Wai Bun (the Defendant) who faced one charge of conspiracy to Defraud and two charges of False Accounting in relation to the affairs of the Hong Kong Industrial and Commercial Bank Limited ("HICB") between 1979 and 1982. I delivered my ruling on this matter on 16th June and undertook to hand down my reasons later, which I now do.

2. It was submitted on the Defendant's behalf that to continue these proceedings against him would, on account of delay, amount to an abuse of the process, and would as well infringe his right to trial without undue delay in terms of Article 11(2)(c) of the Hong Kong Bill of Rights ordinance ("the Bill"), and his general right to a fair trial in terms of Article 10 of the Bill, and that a permanent stay of the proceedings was the only possible remedy.

3. It was further submitted.that a fair trial in terms of Article 10 of the Bill was in particular not possible now because the Defendant was manifesting symptoms of dementia, and was no longer able to recall relevant events or cope with the volume of documentation or instruct counsel, and so conduct a viable defence.

4. Article 11(2)(c) of the Bill 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;..."

5. Article 10 is to the following effect:

"All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children."

6. [In R. v. William Hung H.C. Case No. 32 of 1991, a case decided by me as recently as April of this year, I traversed many of the issues which are relevant in the present case, and I will therefore unashamedly borrow from my judgment in that case where to do otherwise would lead to unnecessary duplication. The quotations from that case will simply be followed by a parenthesis which will include the initials W.H. and a page reference.]

    "The Bill came into effect on the 8th June 1991. Simultaneously, there was an amendment to the Hong Kong Letters Patent, which prohibited 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, provided for the resumption of sovereignty over Hong Kong by the People's Republic of China from 1st July 1997 and stipulated, 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.

7. The Joint Declaration provided 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 (will, after 1997) 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.

8. 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.

9. 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-ming 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 fairness 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.

10. 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."" [W.H. p.2-5]

11. The history of this case as set out in the helpful chronology of events agreed upon by.counsel is long and complex and renders problematical the determination of the precise period of delay which should be considered. The offences described in the indictment were alleged to have been committted by the Defendant and his co-conspirators between 1979 and March 1982, during which time the Defendant was General Manager of HICB. The Banking commissioner was alerted to the possible problem of a cheque cycle at HICB by a U.S. Federal official in February 1982 and set in train an enquiry into HICB's dealings with U.S. banks as they involved certain of HICB's customers.

12. In June 1985 the Overseas Trust Bank (OTB), HICB's parent bank, was in trouble, and was taken over by the Hong Kong Government, and in the same month the Defendant, by then a Director, ceased to be employed by HICB.

13. A joint police/ICAC investigation into the affairs of OTB was begun in March 1986 and in November of that year the affairs of HICB became included in the investigation.

14. The Defendant was arrested by ICAC and interviewed as a suspect in August 1988. He was interviewed again in April 1989 and in the following month was charged with conspiracy to defraud. He first appeared in court on that charge on May 8th 1989 and on 30th May 1989 the Attorney General issued his certificate to bring the case within the ambit of the Complex Commercial Crimes Ordinance, Cap.394. On October 29 1989 in terms of the provisions of that ordinance the trial of the Defendant, (then D5), with the other conspirators, began with the Defendants being arraigned, and with the first of twenty-seven preparatory hearings.

15. On September 5th 1990 following an application by Dl and D2 I ordered that the Defendant must stand his trial separately.from the other accused, and I further ordered that the trial of these other accused ("the first trial") should begin immediately. My reasons for ordering separate trials are relevant to these issues and I will deal with them later.

16. The jury was empanelled in the first trial on September 24th and brought in its verdict on December 6th 1990.

17. The new trial date, i.e. the date on which it was expected the jury would be empanelled in the new trial, was eventually fixed for 28th April 1992, and once again the reason for that delay I will deal with later. After the disposal of certain preliminary matters the Defendant was arraigned on 10th December 1991 and the first of a series of preparatory hearings began. It was always anticipated, that all pre trial matters would be disposed of before the date set for the empanelling of the jury. However a further delay was occasioned because the appeal by the Defendants from the first trial occupied 23 court days from 1st April, and, as both counsel for the Crown were involved, no pre trial matters set for April could be completed and the recommencement of the hearing of these matters was delayed till May 4th. It was agreed simply that a jury would be empanelled, if necessary, once all pre trial issues had been resolved. It is, however, agreed that for the purposes of this application May 4th should be accepted as the date for the start of the Defendant's new trial.

18. So it was that events that took place between 1979 and March 1982 were to form the issues in a trial in May 1992, the investigation having begun in November 1986 and the Defendant having been arrested in August 1988.

19. This application looks both to-common law and statute (the Bill) for its justification. The evolution of this right to trial without undue delay can be traced from the days of Magna Carta through the development of the common law to its refinement in human rights legislation in many common law jurisdictions.

    "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:-

20. 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)

21. 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 be 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)

22. 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)." (W.H. p.14-15]

23. Indeed as was stated by Watkins, L.J. giving the judgment of the English Court of Appeal in R. v. Norwich Crown Court exp. Belsham (1992) 1 WLR 54 at p.65:

"There is ample authority to show that a court ... has at common law an inherent jurisdiction or power to control its process and a duty to prevent abuse of it."

    "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. Derbv Crown Court Ex P. Brooks 1985 80 Cr.App.R. 164 @ 168)

24. Watkins L.J. in R. v. Bow Street Stipendiarv 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." (W.H. p.15-16)

25. In R. v. Bow Street Magistrates exp. Dpp. 24th January 1992 Neill, L.J. neatly summarised the present position on abuse of process, caused inter alia by delay, at P14:-

"(3) Though the law in this field is still at the stage of development, the authorities establish that an abuse of process may exist in the following circumstances:

(a) If '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 advantage of a technicality': see R. v. Derby Crown Court, ex parte Brooks (1984) 80 Cr.App.R. 164, 169 per Sir Roger Ormrod, or

(b) if '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': see ibid., or

(c) if, 'even though the prosecution are in no way responsible for the delay, the delay has produced genuine prejudice and unfairness for the defendant': see R. v. Bow Street Stipendiarv Magistrate, ex parte Director of Public Prosecutions (1990) 91 Cr.App.R 283, 296 per Watkins LJ: R. v. Liverpool Crown Court, ex parte Wimpey plc (unreported) (27th March 1991) per Taylor LJ at page 6D of the transcript.

(4) In a case involving delay the court will consider the reasons for the delay and the responsiiblity, if any, of either the prosecution or the defence for the delay.The court will also consider the issues which are likely to arise at the hearing and the nature of the evidence which is likely to be relevant. Thus a case which depends largely on documentary evidence may be regarded very differently from one where witnesses will have to try to recollect some swiftly moving event which passed before their eyes years ago: cf. R. v. Telford Justices, ex parte Badhan (supra) at p.91

(5) The purpose of the existence and exercise of this discretionary power is to ensure that there should be a fair trial according to law: cf. R. v. Derby Crown Court, ex parte Brooks (supra) at p.169."

    "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)" [W.H. p.16]

    "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)

26. 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."

27. 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."

28. 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 grant 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 whether I consider this application in terms of a common law abuse or of infringements of rights under the Bill.

29. 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).

30. 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."

31. The special position of the European Court, in particular that it usually deals with cases after completion, probably accounts to some extent for the fact that stays of proceedings are not recommended.

32. 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 Article 10 or 11(2)(c) rights." [W.H. p.18-20]

    "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; Carrer 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."

33. The identification of these five factors received approval from the Court of Appeal of England in R. v. Norwich Crown Court ex P. Belsham 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."

34. 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 jurisdiction 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 comtext of an alleged abuse of process or of an alleged abuse of process or of an alleged infringemint of a constitutional right. [W.H p.16-p.18]

35. The judgment of the U.S. Supreme Court in Barker v. Wingo (1972) 407 U.S. 514 "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."

36. 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."

37. In R. v. Askov, the Supreme Court of Canada (was pronouncing) on the right under s11(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.

38. The factors he took into account are little different from those suggested by Powell, J. in Barker v.Winao 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 s11(b) which will permit courts to balance the applicable substantive factors in a consistent manner."(W.H. p.23-24)

    "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 an independent and impartial tribunal established by law."

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

40. In Foti and others v.Italy 1982 5 EHRR 313 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(1). 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 8½ years constituted a violation of Article 6(1).

41. 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." [W.H. p.26-271]

42. Ld. Templeman.in Bell v. DPP, set the seal of approval on the approaches adopted in the U.S. and Canada and followed in Australia and England. The European approach was not inconsistent with these:-

"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."

43. It seems to me, therefore, that I should take into account the length of the delay, the reasons for the delay, the conduct of the parties, prejudice to the Defendant, and the public interest as factors to be considered in the determination of this issue. These are the important factors whether I am dealing with a common law abuse or an infringement of rights under the Bill. I must conduct a balancing exercise in which all of these factors and all other related circumstances are weighed, in order to determine whether in this case a stay of the proceedings should be ordered.

44. There was no agreement about the length of the delay. Mr Haldane submitted that the time should run from early 1982. Mr Nicolls submitted that only post charge delay was relevant.

45. In Article 11 of the Bill the expressions "Everyone charged" (11(1)) and "In the determination of any criminal charge against him", (11(2)) are used. The equivalent section in the Canadian Charter uses the expression "Any"person charged with an offence ..." (Section 11).

46. In Mills v. R. 1986 26 CCC (3d) p.481 at p.558, Lamer J. dealt with the question of the length of the delay:-

"I agree, rather, with the view that the time frame to be considered in computing trial within a reasonable time only runs from the moment a person is charged. Pre-charge delay will in no way impair those interests with which s.11(b) is concerned. Prior to the charge, the individual will not normally be subject to restraint nor will he or she stand accused before the community of committing a crime. Thus, those aspects of the liberty as security of the person protected by s.11(b) will not be placed in jeopardy prior to the institution of judicial proceedings against the individual by mean of the charge."

47. However he was later to explain that view when delivering a dissenting judgment in R. v. Kalanj and Pion (1989) 48000 (3rd) 459, at p.473 and in that case he went on to agree with the European Court's position on the matter:

"Generally speaking a charge begins with an information. Unless the accused is present at the time the information is laid, which very seldom occurs, the justice or judge issues a warrant or a summons to get the accused before him to answer the charge. ... Indeed, until the process is executed or until the accused has knowledge of its existence, the "impairment of the accused's interest" has not really begun. ... This is why I chose, as a starting point, service of the summons, execution of the warrant, but sometimes earlier, that is if the accused is informed of the existence of the charge by the authorities."

48. The European position in this matter is summarised by the European Court of Human Rights in Foti and others v. Italy at p.325:-

"In criminal matters, in order to assess whether the 'reasonable line' requirement contained in Article 6(1) has been complied with one must begin by ascertaining from which moment the person was 'charged', this may have occurred on a date prior to the case coming before the trial court, such as the date of the arrest, the date when the person concerned was officially notified that he would. be prosecuted or the date when the preliminary investigations were opened. Whilst 'charge', for the purposes of Article 6(1) may in general be defined as 'the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence', it may' in some instances take the form of other measures which carry the implication of such an allegation and which likewise substantially affect the situation of the suspect."

49. The matter was also dealt with by the European Court in Eckle v. Federal Republic of Germany (1982) Series A, No.51;'5 EARR 1.

"In criminal matters, the 'reasonable time' referred to in Article 6(1) begins to run as soon as a person is 'charged', this may occur on a date prior to the case coming before the trial court ... such as the date of arrest, the date when the person concerned was officially notified that he would be prosecuted or the date when preliminary investigations were opened ... 'charge' for the purposes of Article 6(1) may be defined as 'the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence', a definition that also corresponds to the test whether 'the situation of the (suspect) has been substantially affected ... "

50. In August 1988 the Defendant was officially advised of "an allegation that he had committed a criminal offence", and in my view there could be little doubt that his situation was, from then on at least, "substantially affected" by the dark shadow that this case cast over him, even though the formal charging did not take place till May 1989.

51. It seems to me that the words "charged" and "charge" contained in Article 11(2)(c) of the Bill should be given a liberal construction, and, in line with the Canadian and European authorities, should relate to the time at which an individual is officially advised by a competent authority that he is suspected of having committed a criminal offence, for it is surely at least from that time that a suspect, who eventually goes to trial, begins to feel the pressure and strain that is experienced by all those who face the wait for trial on criminal charges, and his personal, family, social and business circumstances begin to be affected.

52. But I must also consider what relevance, if any, the period before August 1988 has to this issue. I will describe it as the pre-charge period so as to achieve a consistency with the authorities to which I refer. The investigation into the affairs of HICB began in November 1986, following the takeover by the Government of its parent bank O.T.B., and the commencement of the investigation into that bank's affairs. The Defendant had already been removed, by order of the Government, as a Director of HICB. It is at least likely, particularly in Hong Kong, that the bank officers of HICB including the Defendant, would be aware of the ongoing investigation, long before the interviews in 1988. Witnesses were being interviewed as early as August 1987 and those who had been involved in HICB's affairs would naturally be intensely curious about the outcome and direction of the investigation. I feel sure, therefore, that the Defendant would have been aware of the existence and direction of the investigation, and that he, as former General Manager and a Director of the Bank, would eventually become involved.

53. However, while it should not be forgotten that a person may well suffer pre charge stress during an investigation into events in which he was involved,. until that person knows, or has reasonable grounds for believing, that he will face trial on criminal charges, the question of his right under Article 11(2)(c) of the Bill does not arise. Nevertheless any determination of the issue of fairness of trial must involve consideration of all factors which might be relevant to that issue, including the length of time that has elapsed since the events occurred and the effect that might have on e.g. the availability or capacity of witnesses, or on the person awaiting trial.

54. So that while pre-charge delay may not be relevant to the determination of the length of the "undue" delay referred to in Article 11(2)(c) of the Bill, it is certainly relevant to an assessment of the fairness of the proceedings required by Article 10 of the Bill and the doctrine of abuse of process.

55. In Morin v. R. a judgment rendered by the Canadian Supreme Court in March 1992, Sepinka, J., delivering the majority decision, spoke of pre-charge delay at p.15:

"Pre-charge delay may in certain circumstances have an influence on the overall determination as to whether post charge delay is unreasonable but of itself is it not counted in determining the length of the delay."

56. In Mills v. R. at p.558 Lamer, J. had this to say on the same topic:-

"Pre-charge delay is relevant, however, to the right to a fair trial protected by ss.7 and 11(d) of the Charter.... Pre-charge delay is relevant under ss.7 and 11(d) because it is not the length of the delay which matters but rather the effect of the delay upon the fairness of the trial. Pre-charge delay is as relevant as any other form of pre-charge or post-charge conduct which has a bearing upon the fairness of the trial."

57. I will therefore have to consider this application in the context of a period of 3 years and 9 months (i.e. August 1988-May 1992) that the Defendant had to await his trial in relation to events which had taken place some ten years earlier.

58. When I come to consider the reasons for the delay I must keep in mind that this is a complex case and one involving copious documentation. No point is taken that institutional factors contributed unreasonably to the delay, so I have not found it necessary to rehearse the statistical material and argument on this issue presented in the case of William Hum. The Defendant does not in terms of Article 11(2)(c) complain of the delay which occurred following his arrest until the original trial began in October 1989, in the sense that he does not ask the prosecution to shoulder the responsibility for that delay. He does, however, submit that the delay that occurred following the order for severance that was made in September 1990 must be laid at the prosecution's door. As the facts surrounding that delay are relevant to this issue I must set them out at some length.

59. The case was only a matter of days from the empanelling of the jury in the first trial, (i.e. September 1990) and the pre trial issues had, apart from a few, been resolved when the Court was first made aware that among the Crown's unused material was the evidence of wholesale corruption involving D3 and D4, who were officers of HICB, and the management of FHKC, particularly D1. It transpired that allegations of that corrupt activity had been edited out of the statements of Crown witnesses though, of course, it was highly relevant to the issues of fraud and false accounting then before the Courts. What was left as part of the evidence was an allegation that on only one occasion D3 and D4 had each received a payment of $100,000 from Dl (the Managing Director of FHKC) as a reward for their assistance in operating a cheque cycle and so in providing D1 with cheaper, unsecured and undocumented credit.

60. As part of the pre trial procedures the Court had been asked to edit the records of interviews under caution, which had been conducted with the Defendants, and which were to be part of the Crown evidence, to remove material which it was said was more prejudicial than probative. In the course of that exercise, Defence counsel applied to have references to this wholesale corrupt activity, which were contained in some of the questions asked of the Defendants during the interviews, edited out of the statements. At that stage the Crown had given no intimation to the Court that evidence of regular corrupt activity was available, far less to be adduced, and all references to that activity were therefore deleted.'

61. However, following the editing exercise, the Crown made an application to amend the Prosecution's Case Statement. That statement is required in terms of s.13(1)(a) of the Complex Commercial Crimes Ordinance, Cap.394. The amending of that statement is governed by s.13(2) of that Ordinance which allows the prosecutor to amend his statement before the jury is empanelled -

(a) without the leave of the judge, before the accused has served and delivered a defence response under s.16;

As that had already been done it could be therefore:

(b) only with the leave of the judge, after the accused has served and delivered a defence response-under s.16.

However section 13(3) is to this effect:

The judge shall not grant leave under subsection (2) unless he is satisfied -

(a) that the need for the amendment to the prosecution case statement arises from circumstances beyond the control of the prosecutor which could not have been foreseen at the time the original prosecution case statement was served and delivered; and

(b) that it is in the interests of justice that such leave should be granted.

62. Clearly the prosecution did not satisfy the terms of section 13(3)(a) because, far from not being aware of the allegations of corrupt activity at the appropriate time, the prosecutor had deleted all but one of the references to it from the prosecution statements. The legislation requires that the conditions of 13(3)(a) and (b) both be satisfied.

63. When this material was bought to the Court's attention, the Defendant indicated that he would certainly be making use of it in his case. Part of his defence was that D3 and D4 were, unbeknown to him, assisting FHKC to operate a cheque cycle, and were being bribed to do so. The situation was then that, because of s.13 of the Complex Commercial Crimes Ordinance, the prosecution could not adduce the evidence of corrupt activity through its own witnesses against D1, D3 and D4, but the Defendant, D5, intended to cross-examine these Crown witnesses about that activity in order to incriminate these defendants and to assist his defence. The position of the trial of all Defendants together was untenable. Therefore when an application was made on behalf of D1 and D2 that a separate trial for the Defendant be ordered the Court had no alternative but to make that order There was the further order that the trial of D1-D4 should commence at once,to be followed by the Defendant's trial when dates could be fixed. The Court expressed its dismay at the state of affairs,brt was at the time given no explanation for the conduct of the prosecution. This explanation was only profferred in the course of the present proceedings.

64. The explanation was that the prosecution evidence in relation to the corrupt activity was thought to be largely inadmissible, and it was, therefore, felt, in fairness to D3 and D4,that apart from the one instance referred to,which was proved directly by a witness,it should not be led. Whatever was the validity of that explanation it took no account of the Defendant's position,and I was entirely satisfied that the Crown must shoulder the full responsibility for the need to order a separate and subsequent trial for the Defendant.

65. At that time Mr Plowman was counsel for the Defendant. He had been the Defendant's counsel from the beginning, and had sat through all the pre trial hearings up to the order of severance, and clearly in a case of this complexity it was at least desirable that the Defendant should continue with him. But the Defendant is by no means a man of unlimited resources, and Mr Plowan had other commitments. Indeed, as the new trial was estimated to last two months it was no easy matter to find a date convenient to all parties, including the judge. Accordingly, there was a great deal of haggling before eventually the 28th April 1992 was fixed. I have heard counsel on this matter and I have studied the chronology of events. I find that the Defendant was in no way responsible for the further delay that had to occur until April 1992. (In effect the date was May 4th 1992 as the appeal in the first trial intervened).

66. The Crown has attempted to argue that the Defendant's attitude in relation to the date of the new trial is exemplified by applications he made that I should disqualify myself from hearing the case, having tried the first case, that the new trial should be adjourned till after the ruling of the Court of Appeal in the first trial, and other applications which might have significantly delayed the new trial. I find no merit in that contention, as all the applications were well made and had substantial merit. That I eventually ruled against them all cannot be suggestive of frivolity on the part of the Defendant on the contrary I have been impressed by the anxiety continually expressed on his behalf at pre trial hearings that there be no delay in bringing his case to trial.

67. It is my finding therefore that the Defendant can bear none of the responsibility for the delay in the new trial, or indeed for any of the delay between August 1988 and May 1992.

68. The prosecution had commenced its investigation in November 1986 and brought the matter to trial approximately three years later. While no complaint is made about that delay,and, though I find it is having regard to the complexity of the factual issues, within the bounds of acceptability and reasonableness, it is only barely so. However the lapse of a further two years and eight months thereafter, caused by the prosecution, and unjustifiable, making the total post charge waiting time for trial three years and nine months, takes this case, whose issues are themselves ten years old, outwith the bounds of what is reasonable and acceptable from a pure time lapse point of view.

69. In looking so far at the reasons for the delay, I have not dealt with Mr Haldane's argument that the pre-charge delay resulted from the failure of the proseuction to begin its investigation till 1977 though there was, he submitted, in the hands of the Banking Commissioner, following his investigation of HICB in 1982, enough evidence of fraudulent activity to have begun that investigation then. Mr Nicolls argued that from the evidence it was clear that the Banking Commissioner, acting in the public interest, was more concerned at that time to ensure the Bank's continued solvency than to report instances of criminal activity against its officers. He further argued from the evidence that the officers of the bank including the Defendant had deceived the Banking Commissioner into accepting that the Bank's activities followed normal bank practice. He argued that the Defendant should therefore not be allowed to secure any advantage from the delay in the investigation.

70. I found myself unable to agree with Mr Haldane in this regard. It seems to me that so many and various are the factors that determine the initiation and course of a criminal investigation that courts should be very reluctant to pass judgment on the authorities responsible for not having taken action at a earlier date. Not least among these factors is the public interest and courts are notoriously ill-placed to make reliable assessments of how that interest is best served. This case has to do with banking and in a financial centre, such as Hong Kong, the stability of the banking industry is a highly sensitive issue, and one which requires consideration of many more factors than simply the blame to be attached to those alleged to have by criminal acts endangered that stability. Courts are not made privy to the many factors that must be considered, and are, therefore, in no position to come to any decision in relation to the delays' which occur in prosecuting these criminal acts. They are certainly not in a position to decide that stays of criminal proceedings are justified simply because of the delay in initiating a criminal investigation. As was said by Stevenson, J. in WKL v. R. (1991) 64 CCC (3d) 321 at 323:-

"Delay in charging and prosecuting an individual cannot, without more, justify staying the proceedings as a abuse of process at common law. ... Does the Charter now insulate persons from prosecution solely on the basis of the time that has passed between the commission of the offence and the laying of the charge? In my view it does not. Staying the proceedings based on the mere passage of time would be the equivalent of imposing a judicially created limitation period for a criminal offence." (Now see ExhbitPages 1-25)

71. I have taken time to consider this factor of the reasons for the delay in order,to eliminate the possibility that any part of it can be attributed to the Defendant. Obviously, he could not be allowed to benefit from delay for which he himself was responsible. Putting the Defendant's responsibility for the delay to one side, I am satisfied that it is the length of the delay and the effect of the delay that are to be considered as opposed to the reasons for the delay. It seems to me that despite the English Court of Appeal's reluctance to accede to it in Attornev General's Reference No. 1 of 1990 in a judgment delivered in April 1992 judicial opinion is moving inexorably towards the view expressed by Walkins, L.J. in R. v. Bow Street Magistrate Eh. p. DPP (1990) at p.296 that "mere delay which gives rise to prejudice and unfairness may by itself amount to an abuse of the process" and approved by Neill, L.J. in R. v. Bow Street Magistrate Ex. p. DPP of 1992 at P14, quoted earlier in this judgment. In the present case I am satsfied that the Defendant did not contribute to any part of the delay and I, therefore, am satisfied that I can look to the whole of the period to see what affect that might have on the fairness of the proceedings.

72. A stay of proceedings on account of an abuse of process due to delay will not be granted unless it is established that any subsequent proceedings would be unfair or oppressive:

"The power to stop a prosecution arises only when it is an abuse of the process of the court ...The ultimate objective of this discretionary power is to ensure that there should be a fair trial according to law ...' (per Sir Roger Ormrod in R. v. Derby Crown Court Ex P. Brooks p.168)

Walkins L.J. expressed.his'understanding of the position in similar terms in R. v. Bow Street Magistrate Ex P. Cherry 1990 91 Cr.App.r.283 at p.296

"Obviously, what has to be demonstrated to the court is that the delay complained of has produced genuine prejudice and unfairness."

73. The position in Australia is obviously the same as Deane J. confirmed in Jago v. The District Court of New South Wales at p.60

"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 circumstanres, 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."

74. The position under the Bill and other rights legislation is no different. "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]

(mvparenthesis)

75. 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." N.H. p.21-22].

76. In Bell v. D.P.P. Lord Templeman when considering s.20 of the Jamaican Constitution, which provides for a fair hearing of criminal matters within a reasonable time, said :-

"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."

77. In both Askov and Barker v. Wingo prejudice to the defendant was one of Supreme Courts found applications. the factors both the Canadian and U.S. had to be considered in stay applications

    "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; .... The purpose of Article 11(2)(c) is to ensure that this unhappy period is not unduly long. That is all, of course, ..., 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. ... To find otherwise would, in my view, be to render meaningless the provision of Article 11(2)(c)." [W.H. p.36-37]

78. The authorities speak of a delay so prolonged that a presumption that the defendant has been prejudiced will arise. In R: v. Norwich Crown Court exp. Belshan at p.68 the English Court of Appeal approved the trial judge's summary of the present law

"Where the delay ... is found to be substantial, then the court will the more readily infer that prejudice has occurred, and that it will adversely affect his right to a fair trial. The longer the delay the more likely it is that the inference will be drawn. In some circumstances, prejudice will be presumed from substantial delay which will then be for the Crown to rebut."

79. In Bell v. D.P.P. at p.950 Lord Templeman did not speak of a presumption but he said:-

"The longer the delay in any particular case the less likely it is that the accused can still be afforded a fair trial."

He got nearer to doing so when expressing the very same

views at p.952:

"Nevertheless 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."

Furthermore, in that case the Privy Council did not regard it as injurious to the application for stay that the applicant had not adduced evidence of "specific prejudice". Clearly the Board had in mind that prejudice might be presumed from a very long delay.

80. Cory, J. in Askov also referred to an inference of prejudice at p.482:-

"It should be inferred that a very long and unreasonable delay has prejudiced the accused ... Nevertheless it will be open to the Crown to demonstrate that the accused has not been prejudiced ... Obviously the difficulty of overcoming the inference will of necessity become more difficult with the passage of time and at some point will become irrebutable ... in most situations the presumption will be virtually irrebutable."

81. What prejudice actually involves was also dealt with by the authorities. In Kakis v. Government of the Republic of Cvprus [1978) 1 WLR 779, a case that dealt with the effect of prolonged delay in bringing e.Ntradition proceedings, Lord Diplock gave his view as to the effect of prolonged delay at p.782 :-

"So one must look at the complete chronology of events that I have summarised above and consider whether the happening of such of those events, as would not have happened before the trial of the accused in Cyprus if it had taken place with ordinary promptitude, has made it unjust or oppressive that he should be sent back to Cyprus to stand his trial now.

'Unjust' I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, 'oppressive' as directed to hardship to the accused.resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlaping, and between them they would cover all cases where to return him would not be fair."

Lord Edmund-Davies had a slight disagreement with

Lord Diplock, but not on that aspect of his judgment.

Lord Keith dissented from allowing the Appeal against the dismissal of Kakis' habeas corpus application by the Divisional Court of the Queen's Bench Division.

82. Deane J. in Jago uses the expressions "unfair" and "oppressive" in the context of unreasonable delay.

83. So far as Pewell J. was concerned his fourth factor of prejudice affected inter alia interests :-

"(ii) to minimise anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired."

84. He was of the view that the last interest was "the most serious" as the "inability of a defendant adequately to prepare his case skews the fairness of the entire system."

85. I draw from the authorities, including those which I have briefly reviewed here, that once again no distinction is to be drawn, when dealing with the factor of prejudice, between the common law position and that under rights legislation. Ultimately what has to be determined is whether the proceedings can be fair, and it is for the Defendant, if he is to succeed, to establish on the balance of probabilities that they cannot be fair. However, should the delay be so excessive that a presumption of prejudice arises, it is for the Crown to rebut that presumption. The fairness of proceedings can be jeopardised either because the personal circumstances of the Defendant are so affected by the delay that to continue with the proceedings would be oppressive, or because the Defendant's ability to conduct his defence has been significally impaired.

86. It is my view that, making all due allowance for the complexity of this case, the delays that occurred here, of ten years between the events and trial, five and a half years between the beginning of the investigation and trial, and three years and nine months between arrest and trial, put this case into the category of the presumptively prejudicial and I, therefore, will look to see whether the Crown has rebutted the inference of prejudice that inevitably arises.

87. However, quite apart from any such inference, there has been evidence to suggest that the Defendant has in fact suffered serious prejudice.

88. According to the evidence of Doctor Middleton, which I unreservedly accept, the Defendant has recently suffered a serious blood loss from a bleeding duodenal ulcer. Dr Middleton's view was that a possible, if not the probable, cause of this condition, which in a significant percentage of cases is fatal, was the stress to which the Defendant has been subjected due to the long delay in his criminal proceedings. The evidence was that he had been suffering from dyspepsia over the latter part of the delay period and had possibly already suffered a bleeding ulcer around the end of 1991.

89. There was also the evidence of the five doctors,two psychiatrists, two psychologists, and a neurologist,who were called for their expert opinions on the Defendant's symptoms. of dementia. This evidence was called in support of the Defendant's separate application for a stay of the proceedings under Article 10 of the Bill. The very experienced psychiatrist Dr Green, and the psychologist Dr Lee, called by the Defendant, testified that, in their opinion, he is suffering the early stages of dementia, an irreversible and incurable condition, probably exposed, though not caused by the stress he was under, which by diminishing his memory and other intellectual functions renders him incapable of properly conducting his defence. Dr Yuen, a forensic psychiatrist and Mr Wong, a highly qualified and experienced psychologist, both employed in Government departments, expressed the view that this diagnosis of dementia was misconceived, and Mr Wong felt the Defendant had responded to the psychometric tests he set by deliberately under-performing. Dr Choa, a neurologist, told us that all the results of his scanning tests were negative, which all of the medical opinion indicated proved neither one thing nor the other.

90. I do not have to make a ruling on this separate issue because I have decided to allow this application on the other grounds advanced. Nevertheless, I draw from all of that evidence that the Defendant, now aged 56, had genuinely experienced symptons of stress such as sleeping problems, concentration and memory problems, depression and anxiety, and a general feeling of malaise, all acknowledged to be symptoms of significant stress by the doctors who gave evidence. All in all I have no doubt whatsoever that the very long period of waiting for his trial has seriously prejudiced the Defendant's general health.

91. That finding by itself would not of course have justified ordering a stay of these proceedings, indeed no single factor could do so. That could only result from the balancing exercise which I must conduct with all the relevant factors on the scales.

92. Mr Nicolls reminded me that much of the prosecution's case is established by documentation, and that therefore, though a period of ten years had elapsed since the events, and witnesses' memories of events after such a period would normally be all but completely erased, that was not the position in this case because documents were available both to prove the elements of the charges and to serve as memory refreshers for the witmesses. In support of this argument,he referred to the comments of Mann L J in R. v. Telford Justices ex p. Badhan

"As in a case of delay, we.think the onus will normally be on the accused to show that on the balance of probability a fair trial is now impossible. How the accused is to discharge the onus upon him must depend on all the circumstances of the case. Thus, he may find his task more difficult in a case wholly dependent on contemporary and available documents than he would in a case such as is the present which is dependent wholly upon a late complaint and oral testimony. As in cases of delay, we also think that where the lapse of time is a long one, it may be inferred that a fair trial is no longer possible. Whether it is legitimate to draw the inference will depend on the circumstances of the case. Thus it may not be readily drawn where the prosecution is wholly dependent on available documents."

93. Neill J. had the same observation to make in R. v.Bow Street Magistrate Ex P. DPP 24th January 1992 at p.14:-

"In a case involving delay the court will consider the reasons for the delay and the responsibility, if any, of either the prosecution or the defence for the delay. The court will also consider the issues which are likely to arise at the hearing and the nature of the evidence which is likely to be relevant. This is a case which depends largely on documentary evidence may be regarded very differently from one where witnesses will have to try to recollect some swiftly moving event which passed before their eyes years ago."

94. It is certainly true that in the present case there is a large volume of documentation_.which itself suggests that at HICB, particularly in late 1981 and early 1982, a cheque cycle was being operated, for at least one client, and that that involved many hundreds of thousands of U.S. dollars. It is also true that the structured nature of a bank's hierarchy assists evidentially to identify the. officers of the bank most likely to have knowledge of and to be involved in such an operation. I am aware also of documents bearing the Defendant's signature which prima facie establish that he played some part in the events. Nevertheless, there is also vital evidence from the staff of the Banking Commissioner and HICB's auditors, as well as the staff of HICB, which bears upon the Defendant's criminal responsibility for what took place, and which, to some extent at least, relies upon the ten year old memories of these witnesses. The evidence in relation to the corrupt activity, to which I have already referred, and which is important to the Defendant's case, comes from one of the principal Crown witnesses, an accomplice, with an immunity from prosecution if she gives full and true evidence, and will partly rely upon her memory of the events that took place between 1979 and 1982. Ten year old memories are manifestly unreliable.

95. It is simply not good enough for the prosecution to say, as in effect they are saying, this man was General.Manager of the Bank, Number Two in the Bank in fact, and therefore he must be involved. To establish the conspiracy to defraud charge against the Defendant the jury would have to be satisfied that he knew a cheque cycle was being operated and that he went along with that knowing or believing that it would or might involve loss to the bank(i.e. that a risk of loss was involved), and that he was acting dishonestly. Keeping in mind this was a small family Chinese bank, without the sophisticated electronic equipment of the bigger banks, and the in depth security structures available to the management of the bigger banks,the evidence beyond the documentation assumes a much more central role, and memory of personal contacts and inter-relationships, of the significance of the, documentation, and of the general atmosphere that prevailed within that banking establishment, becomes important and therefore relevant to the fairness of the proceedings. If in such a situation memories are at least likely to be unreliable then the fairness of the proceedings must be called into question.

96. I am not saying that subsequent proceedings will inevitably be unfair, but merely that, because of the long lapse of time since these events, the unreliability of human memory will probably expose the proceedings to the risk of unfairness. If the onus is on the Defendant, that is as much as he needs to establish.

97. However, in any event, I am not satisfied that the Crown has rebutted the presumption of prejudice which must arise after such a lengthy delay. The Defendant has suffered substantial prejudice to his general well being and the fairness of the proceedings is exposed to risk as a result of the delay. That must weigh heavily in the balance against the continuation of these proceedings, but I must consider it together with all the other relevant factors.

98. The last factor I need to consider is the public interest, the interest the public has in seeing serious crimes and those accused of them dealt with expeditiously and fairly by due process. "This is.referred to in the American and Canadian authorities 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. (expressed) 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."

99. 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 freedoms 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.

100. 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." (W.H. p.37-39]

101. Allegations of fraud against senior officers of a bank constitute serious criminal charges, and there is in Hong Kong, in a very real sense, a public interest in having such matters dealt with fairly and expeditiously by due process.

102. However it is now ten years since these offences were committed. In the past ten years Hong Kong's fiscal conscience has become sensitive to the demands of retaining a ranking place among the world's financial markets, and .banking practices of the late seventies and early eighties, which would today be condemned out of hand, and would in any event be subjected to the closer discipline of today's banking legislation, probably reflect the avuncular attitude of the Government of the day, and its supervisory departments, to the relentless surge for growth at all costs that characterised these earlier years.

103. Hong Kong, and its banking industry, have moved on, and there cannot now, some ten years later, be the same intensity of public interest in ensuring that its early 1980's trangressions are punished. The public interest factor has diminished with the passage of time, and the change of circumstances. I'doubt whether there are more than a few members of the public who remember these events involving this small Chinese family bank, if they ever knew about them in the first place.

104. There has, in my view, been excessive delay in this case, none of which has been caused by the Defendant. He has been seriously prejudiced as a result of that delay and the fairness of these proceedings have been jeopardised. Within this common law jurisdiction of Hong Kong, which has espoused human rights legislation, I am enjoined to give full recognition to the rights and freedoms of individuals enshrined in ICCPR, and to give them generous construction; at the same time retaining a proper balance between the interests of these individuals and the wider and equally important interests of the community as a whole. Judicial intervention to stay criminal proceedings whether it be sought in pursuance of an application at common law or under rights legislation should occur only in exceptional cases, but it must occur in these exceptional cases or else we will find ourselves merely paying lip serivce to the principles of Common Law and to the Articles of our Bill, which will become the "pious platitudes" of which Silke, V.-P. was so apprehensive in R. V. Sin Yau Ming. (P.22)

105. This is an exceptional case. The balancing exercise I have conducted sees the scales come down heavily on the Defendant's side. To continue these proceedings would, in my view, amount to an abuse of process. I am also satisfied that the Defendant's rights under Articles 10 and 11(2)(c) of the Bill would be infringed.

106. This application must succeed.