HKSAR v. CHAN MAN SUM, IVAN

HCCC 130/2021

[2023] HKCFI 676

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL JURISDICTION

CRIMINAL CASE NO 130 OF 2021

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REASONS FOR DECISION ON
APPLICATION FOR STAY OF PROCEEDINGS

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A.  THE APPLICATION

1.  The Defendant was charged with one count of Murder. He pleaded not guilty and was in a trial conducted before me and a jury.  On the 17^th day of the trial, before I was to complete my summing up and let the jury start deliberation, there was an application by defence counsel, Ms Draycott, SC, for an application for stay of the proceedings.

2.  After hearing submission from parties, I dismissed the application and continued the trial hearing.  I said I was to provide the reasons for my decision in writing, this is it.

BACKGROUND OF THE TRIAL

3.  The incident which gave rise to this case took place back in 2011.  Based on admitted facts, the Accused killed the victim on 6 October 2011 at her home.  He disposed of her body and her body was never found.  The Accused was arrested on 24 April 2012 and was unconditionally released by the police on the following day.  He was re‑arrested on 12 March 2014 and eventually charged with a count of Murder.

4.  He stood trial in 2015 and was convicted of the offence of Murder.  He lodged an appeal against the conviction.  The appeal was allowed and a re-trial was ordered.

5.  In 2017, he stood the second trial and was again convicted of the offence of Murder.  He lodged an appeal against the conviction.  The appeal was allowed and an order of re-trial was also made.

6.  As a result, the Defendant stood this trial.

STEPS TAKEN BY THE COURT TO AVOID PREJUDICIAL OUT OF COURT MATERIALS

7.  To protect the integrity of this trial, having heard parties’ submissions the court made the following orders:

(1)  A court order made on 31 January 2023 to remove temporarily, during the period of the trial, from the website of the Judiciary, relevant judgments / decisions relating to this case;

(2)  A Gag order on 31 January 2023, forbidding disclosing, disseminating or reporting the hearing on 31 January 2023 before empanelling of the jury which mainly concerned legal argument relating to admissibility and use of certain areas of evidence;

(3)  A Gag order on 3 February 2023 which:

(a)  Reiterates the previous order; and

(b)  Forbids disclosing, disseminating or reporting that the trial was a re-trial;

(4)  A Gag order on 6 February 2023 which:

(a)  Reiterates the previous order; and

(b)  Forbids disclosing, disseminating or reporting a particular duration of a part of the hearing on that day, relating to submission and ruling of the court in relation to discharging of the jury, arising from various mass media reports that this trial was a retrial; and

(5)  A Gag order on 15 February 2023, forbidding disclosing, disseminating or reporting of the hearing on that day, which covered report from parties that there had been a non‑compliance of the Gag order in relating to the issue that this trial was a re-trial, and exchanges amongst the court and parties on this matter.

MATTERS WHICH LED TO THE APPLICATION

8.  The matter which directly led to the application was a news report on the internet on 25 February 2023 which, in the course of reporting an interview with a lawyer on another case, mentioned this case in the remark and described it as the first case where no body had been found but the accused was convicted of the offence of Murder.

9.  This was the third incident of reporting by mass media that this was a re-trial.

10.  The first incident took place on 3 February 2023, having been informed of the situation on 6 February 2023 the court made the Gag order as stated in paragraph 7(4) above.

11.  The second incident took place on 14 February 2023, which was a prima facie case of non-compliance of the Gag order.  During the hearing on 15 February 2023, having given advice to the Defendant and taken instruction from him, Ms Draycott registered grave concern but indicated that there would be no application for discharge of the jury or other application and that the trial could continue with the court giving appropriate direction in this regard.

12.  Upon happening of the third incident,[1] Ms Draycott made this application for stay of proceedings, mainly on the basis that a fair trial would be no longer possible.

DISCUSSION AND CONSIDERATION

13.  In an application for stay, it is for the Defendant to show on balance of probabilities that he will suffer serious prejudice to the extent that no fair trial can be held, in other words, continuation of the prosecution amounts to a misuse of the process of the court.[2]

14.  The Court of Final Appeal held in HKSAR v Lee Ming Tee[3] that staying of criminal proceedings would only be justified in highly exceptional circumstances.  A stay would be granted if[4]:

(1)  notwithstanding the range of remedial measures available, a fair trial for the accused was impossible and continuation of the prosecution would amount to an abuse of process;

(2)  in very rare cases, although the fairness of the trial was not in question, the circumstances involved an abuse of process which so offended the court’s sense of justice and propriety that the entire prosecution was tainted as an abuse of process.

15.  The Court further observed that in the said latter scenario, the court is not exercising the jurisdiction to stay as a means of disciplining the public officials involved.

16.  The Court has also made the following observations and cited some of the following observations with approval:

(1)  the jurisdiction to stay is most sparingly exercised[5];

(2)  only in very unusual circumstances that a court can properly be satisfied that a fair trial is impossible[6];

(3)  the fairness achievable is judged in practical and not absolute terms[7];

(4)  a power to ensure a fair trial is not a power to stop a trial before it starts.  It is a power to mould the procedures of the trial to avoid or minimize prejudice to either party[8];

(5)  the public interest lies in the guilt or innocence of the accused being fairly and openly determined at trial.  For this to be displaced, powerful reasons must exist for concluding that a fair trial is not possible, or such a trial though fair would nonetheless constitute an intolerable abuse of the court’s process[9];

(6)  if a prosecution is brought, the court’s duty is to try the case[10];

(7)  generally speaking, a prosecutor has as much right as a defendant to demand a verdict of a jury on an outstanding indictment, and where either party demands a verdict a judge has no jurisdiction to stand in the way of it;[11] and

(8)  where the ground on which a stay is sought concerns alleged unfairness in the use of particular classes or items of evidence, the courts, for procedural reasons, are extremely reluctant to determine the evidential questions on a stay application, as the fairness of using the evidence may be incapable of evaluation prior to the trial itself, the impact of such evidence on the fairness of the trial may need to be considered in the context of the evidence as a whole so that the question may best be dealt with as a question of admissibility to be determined by the trial judge who has discretion to exclude the evidence[12].

17.  Adverse publicity in the reporting of notorious crimes can be considered as obstacles in the way of a fair trial and there were applications for stay based on this ground.  In Jago v District Court of New South Wales[13], Brennan J said that this does not necessarily cause the proceedings to be stayed, as unfairness occasioned by circumstances outside the court’s control does not make the trial a source of unfairness, the responsibility of the trial judge to avoid unfairness, is not discharged by refusing to exercise the jurisdiction to hear and determine the issues, but by controlling the procedures of the trial including making of interlocutory orders, rulings on evidence and directions to the jury designed to counteract any prejudice which the accused might otherwise suffer.[14]

18.  In R v Kray[15], Lawton J[16] said:

“… I have enough confidence in my fellow-countrymen to think that they have got newspapers sized up just as they have got other public institutions sized up, and they are capable in normal circumstances of looking at a matter fairly and without prejudice even though they have to disregard what they may have read in a newspaper. So, the mere fact that an earlier trial had been reported at length in the Press would not, in my judgment, amount to establishing a prima facie case of the probability of bias or prejudice in anyone summoned to attend as a juror for a later trial. …

… It is, however, a matter of human experience, and certainly a matter of the experience of those who practice in the criminal courts, first, that the public's recollection is short, and, secondly, that the drama, if I may use that term, of a trial almost always has the effect of excluding from recollection that which went before. A person summoned for this case would not, in my judgment, disqualify himself merely because he had read any of the newspapers containing allegations of the kind I have referred to; but the position would be different if, as a result of reading what he had, his mind had become so clogged with prejudice that he was unable to try the case impartially.” (emphasis added)

19.  It was also held by the Court of Appeal in HKSAR v Kissel[17] that even if there was prejudicial effect on an accused from media coverage, it could be alleviated by proper direction of the trial judge.  In this regard, I share the submission of Ms Draycott that each case has to be decided upon its special circumstances.

20.  The situation in the present case was no doubt highly unsatisfactory and the concern of the defence was well appreciated.  It is my duty to decide the application in accordance with the legal principles applicable in the circumstances of the present case, in particular to decide:

(1)  whether or not the defendant will suffer serious prejudice to the extent that no fair trial can be held; and

(2)  whether the circumstances involved an abuse of process which so offended the court’s sense of justice and propriety that the entire prosecution was tainted as an abuse of process.

21.  In consideration, I have had regard to the whole of the relevant circumstances, including the following matters:

(1)  The information was from an internet media which I accept is one patronised by many people;

(2)  The information in question, though only occupying five lines of words as a remark to the main article, the article was in relation to a homicide case hotly covered by the press at the time;

(3)  The information carried substantial potential prejudicial effect to the Defendant;

(4)  The information first appeared at 11:27 hours, on the Saturday which was two days prior to the hearing in which the application was made, and the material in question was removed by 16:00 on the same day;

(5)  The incident involved no fault on the part of any party of the trial, the Defendant can only be regarded as the victim of the situation;

(6)  The defence did not ask for discharge of the jury (this stand is understandable as the consequence of such action will be a period of delay, this has to be considered in the light of the lengthy duration when the Defendant has been detained in custody);

(7)  During jury empanelling, steps had been taken to ensure that jurors chosen do not know the defendant and a homicide case which took place in Amoy Garden and the body of the victim was never found;

(8)  I agree to the submission of Ms Draycott that it would not be desirable to make enquiry at this stage of the trial with the jury in this regard;

(9)  The jury had on various occasions, prior and during the summing up and direction, been reminded of their oath that they were to give a true verdict according to the evidence and been given directions that they could only decide the case on consideration of the evidence adduced and nothing more, and also that if they had come across information relating to the case they must put such information aside and do not take the information into account and do not let themselves be influenced by the information, and

(10)  the direction could be reiterated to the jury in the remaining part of the summing up (and indeed was done).

22.  In my judgment, any risk of potential prejudice in the circumstances could be cured or alleviated by proper measures, such as a suitable direction from the court.

23.  Having considered the whole circumstances of the case, I did not consider this a situation which rendered a fair trial impossible, or a matter amounting to 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.

CONCLUSION

24.  For the reasons mentioned, I did not find there were sufficient justification for staying the proceedings and therefore refused the application.