HKSAR v. NG CHUN TO RAYMOND AND ANOTHER

CACC 178/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 178 OF 2010

(ON APPEAL FROM DCCC NO. 405 AND 895 OF 2009)

________________________

________________________

____________________________________

REASONS FOR JUDGMENT

____________________________________

Hon Stock VP (giving the Reasons for Judgment of the Court):

Introduction

1.  On 31 July 2013, we handed down judgment in this appeal against the conviction of D1 upon 4 charges of conspiracy to defraud and one charge (Charge 6) of doing an act tending and with intent to pervert the course of justice; and of D4 upon 17 charges of dealing with property known or believed to represent the proceeds of an indictable offence.

2.  We there indicated our intention to grant the applicants leave to appeal their convictions, treat the hearing of the applications as the appeals, allow the appeals and quash the convictions and said that, save in relation to Charge 6, we were minded to order a re-trial.  We subsequently gave directions for the tendering of submissions on the question of retrial.

3.  In accordance with those directions, we received written submissions.  These have been supplemented by oral submissions at a hearing on 8 November 2013, after which we made the following orders :

(1)  that the applicants be granted leave to appeal against conviction, that the hearing of the applications be treated as the appeals, that the appeals be allowed and the convictions and sentences imposed in the court below be quashed; and

(2)  that D1 be retried in respect of Charges 1-4.

We declined to order a retrial of D4 in respect of the charges of which she was convicted.

4.  The reasons for our decision to allow the appeals and quash the convictions are contained in the judgment of 31 July.

5.  At the end of the hearing on 8 November 2013 we said that we would give reasons for our decisions in respect of the retrial application; and this we now do.

6.  The respondent sought a retrial of both applicants in respect of all charges save the sixth against D1; the application was opposed by the applicants.

The power to order a retrial

7.  The power to order a retrial where an appeal is allowed is conferred by s 83E (1) of the Criminal Procedure Ordinance Cap. 221:

“Where the Court of Appeal allows an appeal against conviction and it appears to the court that the interests of justice so require, it may order the appellant to be retried.”

8.  We have helpfully been taken to several key decisions which address the proper application of that provision.  They include :

(1)  Au Pui-kuen v AG (1979) HKLR 16, a decision of the Judicial Committee of the Privy Council in the course of which Lord Diplock pointed out (at pp 19-21) that:

“The power to order a re-trial must always be exercised judicially. Any criminal trial is to some degree an ordeal for the accused; it goes without saying that no judge exercising his discretion judicially would require a person who has undergone this ordeal to endure it for a second time unless the interests of justice required it. …

To exercise [the discretion] judicially may involve a court in considering and balancing a number of factors some of which may weigh in favour of a new trial and some may weigh against it. The interests of justice are not confined to the interests of the prosecutor and the accused in the particular case. They include the interests of the public in Hong Kong that those persons who are guilty of serious crimes should be brought to justice and should not escape it merely because of a technical blunder by the judge in the conduct of the trial or his summing up to the jury.

…

The strength of the evidence adduced against the accused in the previous trial is clearly one of the factors to be taken into consideration in determining whether or not to order a new trial.

…

…if the Court of Appeal are of opinion that upon a proper consideration of the evidence by the jury a conviction might result it is not a necessary condition precedent to the exercise of their discretion in favour of ordering a new trial that they should have gone further and reached the conclusion that a conviction on the retrial was probable.”

(2)  Ting James Henry v HKSAR [2008] 4 HKLRD 850 in which Lord Woolf NPJ said that:

“50. … A factor that has to be given the greatest weight in determining any application for a retrial is the fact that the defendant has already undergone one trial. This is of particular significance where the trial was long and complex … .

51. What I just said does not mean that this court does not have regard to the views of the prosecution.  The prosecution is entitled to have weight attached to its views because not only is it the prosecuting authority, but also in adversarial proceedings, it is best qualified to present the views of the public to which importance has to be attached when determining what justice requires.  It can be contrary to the interests of justice if the public feel enraged or even disquieted at the fact that the defendant who may have committed a serious offence, apparently escapes the normal consequences of his crime because a failure in the trial process has resulted in his conviction being set aside.”

(3)  Dennis Reid v The Queen [1980] AC 343 in which it was recognised (at p 350) that:

“… there may be many factors deserving of consideration, some operating against some in favour of the exercise of the power. The seriousness or otherwise of the offence must always be a relevant factor: so may be its prevalence; and where the previous trial was prolonged and complex, the expense and the length of time for which the court and jury would be involved in a fresh hearing may also be relevant considerations. So too is the consideration that any criminal trial is to some extent an ordeal for the defendant, which the defendant ought not to be condemned to undergo for a second time through no fault of his own unless the interests of justice require that he should do so. The length of time that would have elapsed between the offence and the new trial if one be ordered may vary in importance from case to case, though having regard to the onus of proof which lies upon the prosecution lapse of time may tend to operate to its disadvantage rather than to that of the defendant. Nevertheless there may be cases where evidence which tended to support the defence at the first trial would not be available at the new trial and, if this were so, it would be a powerful factor against ordering a new trial.

… The strength of the case presented by the prosecution at the previous trial is always one of the factors to be taken into consideration but … the weight to be attached to this factor may vary widely from case to case according to the nature of the crime, the particular circumstances in which it was committed and the current state of public opinion [in the jurisdiction of trial].  On the one hand there may well be cases where despite a near certainty that upon a second trial the defendant would be convicted, the countervailing reasons are strong enough to justify refraining from that course.  On the other hand it is not necessarily a condition precedent to the ordering of a new trial that the Court of Appeal should be satisfied of the probability that it will result in a conviction.”

(4)  R v Maxwell [2011] 1 WLR 1837 where the question was raised of a retrial in the face of prosecutorial misconduct in the original proceedings, Lord Dyson remarked that:

“23. … It goes without saying that, when allowing the appeal in the present case essentially on the grounds of prosecutorial misconduct, the Court of Appeal could not rationally have concluded that the interests of justice required a retrial if the retrial would be substantially based on evidence which was the product of that very misconduct. …

24. It is helpful to start by asking whether the interests of justice would require a retrial in circumstances where the prosecution evidence at the new trial would be incontestably free of taint.  Let us suppose DNA evidence comes to light after the appellant has been convicted which strongly points to his guilt; or an apparently credible independent witness comes forward and makes a statement implicating the appellant.  Let us further suppose that the prosecution say that, if there were a retrial, they would only rely on the fresh evidence and would not adduce the tainted evidence.  In deciding whether or not the interests of justice require a retrial, it is surely clear that the Court of Appeal would be entitled to disregard the earlier misconduct since it would have no effect on the retrial.  The only justification for refusing a retrial on the grounds of misconduct in such a case would be to mark the court’s disapproval of that historical misconduct and to discipline the police.  But that is not the function of the criminal courts.”

9.  These excerpts point to some of the major considerations which will arise in the application of the test; but they are not exhaustive, for the test can only properly be applied in the context of considerations which are case specific.

History

10.  The history of the proceedings is of course relevant.  In this case the alleged offences took place between 2005 and 2007.  The applicants were arrested in May 2008.  D1 was charged in February 2009; D4 later that year.  The trial commenced in November 2009 and the verdict was delivered and sentence imposed in April 2010.  Notices of application for leave to appeal conviction were filed in May 2010.  In November 2010, the ICAC officers were arrested.  In May 2011, CCH pleaded guilty after his application for a permanent stay of proceedings had been rejected.  Six alleged co-conspirators (prosecution witnesses at the trial of D1 and D4) gave evidence at that stay application and their testimony was accepted.  In January 2012, the trial of the officers commenced and they were convicted in April 2012.  The relevance of these other proceedings is that they necessarily occasioned a delay of the hearing of the applications of D1 and D4 for leave to appeal.  That hearing took place in March 2013 with judgment in July 2013.

The submissions

11.  Against that background, the applicants advanced a number of submissions in opposition to a retrial:

(1) that the applicants have already undergone a lengthy and costly trial and appeal process;

(2) that a retrial would be lengthy and costly;

(3) that before such a trial takes place and at the trial, it will be necessary for the defence to explore what happened in the various meetings between ICAC officers, including the convicted ICAC officers on the one hand and, on the other, the alleged co-conspirator witnesses who are to be called by the prosecution;

(4) that the ability of the defence to perform effective investigation or cross-examination in relation to what transpired at such meetings will, by reason of the passage of time and the fate of CCH and the three officers since the first trial, inevitably have been compromised, not least because it seems that the proposed prosecution witnesses – the alleged co-conspirators – have recently said that they do not wish to be interviewed by those acting for the applicants, one result of which is that the applicants will or may be put in the invidious position of having to call CCH ( the witness whose proposed evidence was the subject of improper interference by the now convicted ICAC officers);

(5) that it would be unfair to allow the prosecution to re-run its case bearing in mind in particular that the evidence without CCH is circumstantial;

(6) that an order for a retrial may appear to be an indirect endorsement by this Court of deliberate misconduct by the ICAC officers, an appearance, in other words, that the end justifies the means;

(7) that D4 who was sentenced to 3 years’ imprisonment has, with the benefit of the usual remission for good conduct, in fact served her whole sentence;

(8) that D1 has, prior to release on bail pending the appeal, served 17 months of the 3½ year term imposed in respect of the first four charges, which should be considered in the context of the fact that a one-third reduction for good behaviour envisages, for practical purposes, a total of 28 months in prison;

(9) that five years have elapsed since the arrest of the applicants, during which time the applicants and their three children have suffered considerable stress with particularly adverse consequences for the youngest of the children;

(10) that the prospect of a retrial will add significantly to the cost and to that stress; and

(11) that the applicants will suffer substantial difficulties in any event in re-engaging in any gainful employment.

12.  The respondent, on the other hand, asserted that:

(1) the offences are serious, highly sophisticated, took place over an extended period, enured to the disadvantage of the investing public and involved a cross-border element;

(2) the profits generated by the crimes were enormous.  Over HK$5million was found in cash in D1’s office and almost HK$39 million in his bank accounts; $34.6 million was found in a safe deposit box in D4’s name and $69 million deposited in cash in bank accounts in her name;

(3) whilst there has been a substantial lapse of time since the commission of the offences and since the trial concluded in April 2010, it is not, in the context of cases of this complexity, an unusual passage of time;

(4) substantial confiscation orders have been made and in the absence of a conviction there will be no power to seek to seize assets other than assets which were in the possession of the applicants;

(5) the true penalties imposed included sentences of nine years’ imprisonment in default of meeting the confiscation orders;

(6) the circumstantial evidence is strong, principally travel movement records, surveillance evidence, the undeniable fact of D1’s historical association with some of the insiders, and the vast sums of money found in the possession of the applicants; and

(7) it is not intended to call CCH at trial and the remaining evidence has not been shown to have been tainted.

Analysis

13.  In our judgment, the scale and sophistication of the warrant pushing activity is a major factor.  The fact of a warrant pushing scheme was never in issue.  The sole issue in the case against D1 was whether it could be proved that he was the person named Raymond.  The fact that the evidence against him was circumstantial does not derogate from the combined effect of that circumstantial evidence and it seems to us sufficiently clear upon the circumstantial evidence in respect of which the judge relied that a conviction of D1 might well result upon retrial.  This is not to prejudge the outcome, which of course would be a matter for the trial judge on the evidence as it emerges before him but is, rather, to make a broad and present assessment which the application of the relevant test requires us to make.  The case against D4 is a case that can fall within a limited compass given the vast sums in her possession for which her past legitimate occupation does not, on its face, account.

14.  Beyond that, the allegation is that Raymond was the orchestrator of the entire scheme and if it be proved that D1 is Raymond, that primary and controlling role is a highly material consideration.

15.  As for the expense, that is of course a relevant consideration but past expense is amenable to an application for costs.  An application has been made, to which we refer below.

16.  In relation to the suggestion that effective investigation or cross-examination will now be difficult, we were shown recent correspondence between those acting for the applicants on the one hand and, on the other, the ICAC and the Department of Justice in which the applicants have been asking for access to those who were prosecution witnesses at the trial of the applicants; correspondence which is said to evidence unreasonable obstruction of that request.  It may be, we know not, that behind the attitude of the Department of Justice is concern born of evidence at the original trial that some lay person had approached PW2 before he gave evidence at the first trial with a view to persuading him not to co-operate with the prosecution.  It goes without saying that there is no property in a witness and it is not a matter for the Department of Justice to concede or refuse access to witnesses.  But what we are not prepared to do at this stage is to determine whether the prosecution witnesses are indeed reluctant to be seen by those acting for the defence, as is contended in the correspondence, or to embark upon a full-scale examination of what avenues may yet be made available to the defence to interview these witnesses.  We are in any event not persuaded at this stage that an effective defence of the case against the applicants is not possible. Should there be a significant basis in the event to assert the impossibility of a fair trial, that would be a suggestion, if pursued, to be examined in the light of the events as they transpire hereafter.

17.  The suggestion in the written submissions though not mentioned by counsel in oral argument that an order for a retrial may appear to be an indirect endorsement by this Court of deliberate misconduct is a suggestion which ignores the stark fact that our judgment of July this year makes sufficiently clear our gross distaste for the conduct of the convicted ICAC officers whilst at the same time making equally clear the basis, in law and on the facts, upon which we nonetheless declined to order a permanent stay of proceedings.

18.  We took into account the fact that the delay since trial lies at the door of the investigating authority by reason of the misconduct of three of its officers and not at all at the door of the applicants; and we took into account as well the stress caused by that delay and the further stress which will be occasioned by the prospect and fact of a retrial, were we to make such an order.

19.  It is, at the end of the day, a question of balancing these various factors and asking ourselves whether the interests of justice require a retrial.  Given the gravity of the alleged offences, the sophistication of the operation and the very substantial sums involved, and the suggested lead role of D1, as well as the fact that the activities in question directly affected the investing public, we were satisfied that the interests of justice require that the first applicant be retried upon a fresh indictment alleging the Charges 1-4 in respect of which he was originally tried.  In so concluding, we took into account the fact that he has served 17 months of the term originally imposed.

20.  We came to a different conclusion in relation to D4.  She has served two years in prison which accounts for the full term she was required to serve with remission for good behaviour.  The fact that we take the view that the sentence imposed did not reflect the gravity of the offences of which she was convicted is of comparatively little consequence when one considers the prospect of now ordering a retrial of someone released 18 months ago.  That is a prospect with which we were singularly uncomfortable not least when we took into account the fact that that the delay since her release does not lie at her door and the further assumption, which we think reasonable to make that, assuming the allegations against the applicants are valid, she is likely to have acted at her husband’s direction or request.  We were exercised by the question of a confiscation order made in her case but we are persuaded that section 102 of the Criminal Procedure Ordinance does not, in respect of property which was in her possession, depend upon a conviction and as to the rest, the evidence against D1, if proved at trial, is such as to suggest that the remaining property in her name was provided to her by her husband and held by her in trust for him or for them both and would be amenable upon his conviction, if that occurs, to an appropriate application.

Costs

21.  As for costs, we ordered that the costs of the trial and of the appeal be to the applicants, to be taxed if not agreed.  This was opposed by the respondent but since the basis of our decision in July 2013 was that the applicants were deprived of a fair trial, we failed to see a rational basis upon which such an order could be refused.