SHUM CHIU AND OTHERS v. SECRETARY FOR JUSTICE

FAMC Nos. 5, 6, 42 & 43 of 2007

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NOS. 5, 6, 42 & 43 OF 2007 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NOS. 50, 51 & 52 OF 2006)

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DETERMINATION

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Chief Justice Li :

1. The four applicants were on trial before the District Court (Deputy Judge Livesey) for various offences of conspiracy to bribe public officers and conspiracy to falsify accounts.  

2. On their application, the Judge granted orders staying the proceedings permanently.  In relation to the 3rd applicant, the stay was granted on the ground that although a fair trial is possible, the circumstances involved an abuse of power which so offended the court’s sense of justice and propriety that the entire prosecution was tainted as an abuse of process.  The abuse of power involved the covert recording by the ICAC of a meeting on 16 November 2002 between the 3rd applicant and two solicitors.  Tang Hop Sing (“Tang”), a fellow employee of the 3rd applicant, who was working as an undercover agent for the ICAC, was present.

3. In relation to the other applicants, the stay was granted on that ground as well as on the ground that a fair trial is not possible.  It was held that they could not have a fair trial since they were not present at the meeting in question and could have no access to the tape because the meeting was protected by legal professional privilege.

4. The way in which the stay applications proceeded before the Judge was rightly described by the Court of Appeal as a procedural mess.  The applications proceeded on facts contained in certain documents which were described as “premised” facts.  One of the solicitors present at the recorded meeting was called to give evidence by the 3rd applicant. 

5. After defence submissions, prosecution counsel asked the Judge to exercise her discretion in two matters.  First, he sought to resile from his previous position that the meeting was privileged.  Secondly, he sought to call two ICAC officers to give evidence, having indicated earlier that he would not call any evidence.  Whatever be its earlier position, the prosecution wished to argue that the meeting or a material part of it was not privileged by reason of the crime exception and that in any event, the ICAC had not acted in bad faith since it had good reason to believe that the meeting would not be privileged by reason of that exception.  The prosecution wished to call an ICAC officer to produce evidence of covertly recorded conversations which took place earlier on 11 November 2002, involving Tang and a fellow employee, and the ICAC officer who signed the relevant authorization.

6. The Judge ruled that the prosecution was not permitted to resile from its earlier acceptance that the meeting was privileged and from its earlier indication that it would not call any evidence and granted the stay orders.

7.  On judicial review, Hartmann J held that as a matter of fairness, the Judge was obliged to conduct a full inquiry and hear the ICAC’s evidence, before determining the stay applications. He quashed the Judge’s rulings and stay orders and remitted the matter to the District Court for a fresh determination of the stay applications.

8.  The Court of Appeal upheld Hartmann J’s judgment.  It only dealt with the stay order on the “affront to justice” ground, stating that the fair trial ground did not concern it.  It held that for the ICAC to justify intrusion into a solicitor-client communication, strong evidence of a criminal purpose was required.  It emphasised that the determination whether criminal proceedings should be stayed is “always case and fact specific” and held that the stay applications could not be fairly decided without hearing evidence from the ICAC.

9.  On 18 May 2007, the Court of Appeal refused the 1st and 2nd applicants’ applications to certify various points of law said to be of great and general importance.  They have applied to us to certify the points of law and for leave to appeal on both the point of law limb and the substantial and grave injustice limb.  Although they did not apply to the Court of Appeal for a certificate, the 3rd and 4th applicants have applied to us for a certificate and for leave to appeal on both limbs out of time.

10.  The points of law sought to be certified raise important matters of principle.  The essential question for us is whether it is appropriate for the Court to entertain and decide these points in the absence of findings of fact made after hearing the ICAC evidence.  In our view, it is not.  As the Court of Appeal pointed out, the determination of stay applications is case and fact specific.  Such applications, including any points of law involved, should be decided in the context of findings of fact.  As was rightly held below, these findings could not be fairly made without hearing the ICAC evidence.  After the stay applications have been decided with proper findings of fact, such points of law as may arise may then be pursued through the appellate process.

11.  Accordingly, the applications for certificates and for leave and the 3rd and 4th applicants’ applications for extensions of time should be dismissed.