R. v. WONG CHUNG LING

NO. 395 OF 1994
(CRIMINAL)

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

____________

_________________

J U D G M E N T

_________________

1. This is an application to stay the prosecution of the Defendant on the basis that he cannot now have a fair trial, and therefore if he were to be retried it would be an abuse of process. After hearing a Submission by Mr. Michael Gerber on behalf of the Defendant during the course of the original trial, I became very concerned at the position of the Defendant which I considered had been prejudiced by Crown Counsel's adducing of certain evidence. As a result I concluded that the jury would have to be discharged and gave vent to my concern as to whether the Defendant could in future have a fair trial. At the conclusion of the argument for the day, I wanted to consider the matter overnight, particularly since it was apparent to me that the Crown Counsel then conducting the prosecution had been unable to assist me on the pertinent matters. I decided to discharge the jury, did so the following day, and invited Mr. Gerber to make a formal application to stay the prosecution so that the matter could be fully argued on behalf of both parties. This has now taken place with Mr. Gerber appearing again on behalf of the Defendant and Mr. Michael Arthur, Senior Crown Counsel, who did not appear on the original trial, on behalf of the Legal Department.

2. It is of relevance to consider the matter ab initio - a voir dire was concluded in which I was asked to rule upon the admissibility of two contemporaneously recorded interviews of the Defendant, Exhibits Nos. 1 and 5. There were in existence three other recorded interview (exhibits 2, 3 and 4) which I was not asked to consider because it transpired that Crown Counsel had told Defence Counsel that the prosecution would not rely upon them in the voir dire. Having read the papers in advance, I could not understand why the prosecution was taking that course - it seemed to me to be wholly artificial to rule upon the admissibility of those two interview records "in vacuo", the prosecution in effect tying their hands. It was of course not for me to decide what course the prosecution should or should not take but I indicated my concern. I also raised the matter of Exhibit 2 which was the most significant potentially, and Crown Counsel appeared to shift the prosecution's position by indicating that I could consider Exhibit 2, Leading Counsel then appearing for the Defence on the voir dire (though not on the trial) made it clear that although he understood that the Crown was not seeking to adduce Exhibit 2 he did not object to my looking at it but that the Defence were contesting when and where it was made. This appeared to me to be unsatisfactory and so I made it clear that if the Crown had stated to the Defence that they were not going to rely upon Exhibit 2, I should not consider it. So I excluded it from my consideration and applied my mind to the interview records, Exhibits 1 and 5, solely. In the event, I ruled both admissible, I had found the Police Officer an impressive witness. The trial then started.

3. At some stage of the evidence given by one of the Police Officers it was elicited that the Defendant had, on two occasions, been invited to be interviewed, when it was video-recorded, and that he declined the invitation; and that there was a record of this. Although that emerged by way of cross-examination of the Senior Inspector, I was nonetheless concerned about the effect of such evidence upon the Defence case. The real problem, which compounded this potential difficulty, emerged when Crown Counsel adduced from DPC 13279 the existence of Exhibit 2 as a record of an interview in a notebook. This interview contained a significant piece of evidence, potentially. The jury heard it referred to as Exhibit 2, with the translation as 2A. It was this which prohibited Mr. Gerber to rise to object to its being adduced. At that stage I had assumed that there had been agreement between Counsel that it would be adduced. There had been no such agreement. Although Crown Counsel informed me that she had adduced the fact of and nature of Exhibit 2 because she said it had been "fully explored" in the voir dire, this was wholly incorrect. Furthermore, Mr. Gerber informed me that the Crown had indeed promised the Defence that they would not be relying on Exhibits 2, 3 and 4. Crown Counsel confirmed this but then went on to say she had changed her mind. If she had done so, she had omitted to inform the Defence, and conceded that. I was not a little perturbed at the way the prosecution's case was being conducted, but particularly since the possible effect was to prejudice the Defendant's case in the following respects :

(1) The jury knew that the Defendant had declined a video-recorded interview, but not the reasons for or circumstances of this - they were likely to draw an inference against him because of this;

(2) They knew of the existence of an interview which was recorded in writing and signed by the Defendant, which had been designated as an exhibit and which, if the trial were to continue, they would not see and would in fact be told to ignore. Here too was the potential for an inference adverse to the Defendant.

(3) The evidence against the Defendant was almost wholly from Police Officers and from the interviews recorded by them. Their credibility was the overriding feature of the prosecution case. I could see that a consideration of Exhibits 2, 3 and 4 in the voir dire may have caused me to have a different view of the admissibility of all these records. Not having had to consider them, or hear cross-examination as to the circumstances in which they were made, I have a totally open mind as to the position and cannot regard my finding that the Police Inspector was an impressive witness as immutable.

(4) There was the possibility of the jury being extremely confused on the issue of credibility in relation to the interviews. I took the view that although that might be to the prosecution's disadvantage it was also potentially prejudicial to the Defence.

Accordingly, I discharged the jury from giving a verdict.

4. The main consideration once I had taken that course was whether the Defendant could have a fair trial if there were to be a retrial. At the time of my initial consideration, I was at pains to encourage Crown Counsel to get to grips with the situation that I considered had been brought about by the way the prosecution had been concluded, and to some extent I advanced the argument, as a "Devil's Advocate", in order to achieve that purpose. I adjourned proceedings in order to give further thought to the matter making it clear to Mr. Gerber that if I moved away from the argument I had been advancing, I would give him every opportunity to put the argument on behalf of the Defendant fully. By the next day I had stood back to look at the situation afresh, was not persuaded that it would be wrong to order a retrial and invited Mr. Gerber to make an application to stay the proceedings at some future date.

5. That is the situation attained today when Mr. Gerber on behalf of the Defendant has sought to persuade me that the Defendant cannot have a fair trial. I have been referred to a number of authorities, most of which have arisen, as a result of arguments, based essentially on delay, but within those, the principles to be observed have been set out.

6. The decision of the Court of Appeal in R. v Lewis [1909] Cr. App. Rep. Vol. 2, p. 180, was concerned with the judge's discretion to discharge a jury but underlined that such a course should not be adopted "in order to allow the prosecution to present a stronger case on another trial." In the reported case of R. v Lawn [Inner London Crown Court Sept. 19th 1983 - Crim. L.R. 1984], a retrial was regarded as an abuse of process because at the original trial the Judge had discharged the jury in the face of opposition by the Counsel for the prosecution and for the defence, he having indicated that he did not like the way the prosecution was being conducted. That is a matter of common sense as well as justice.

7. Over the past few years there have been many cases concerned with alleged abuse of process. I was referred to Attorney General's Reference (No. 1 of 1990) where the Court of Appeal held that a stay for delay or any other reason (my underlining) was to be imposed only in exceptional circumstances; and that even more rarely could a stay properly be imposed in the absence of fault on the part of the complainant or the prosecution, and never where the delay was due merely to the complexity of the case or contributed to by the defendant's actions. The Court added the general consideration that no stay was to be imposed unless a defendant established on the balance of probabilities that owing to the delay, he would suffer serious prejudice to the extent that no fair trial could be held, in that the continuation of the prosecution amounted to a misuse of the process of the court. If we substitute for the phrase "owing to the delay" the phrase "on a retrial" then that is the criterion on which this application is to be judged. The Privy Council in the speech of Lord Lowry in Hui Chi Ming v The Queen [1992] 1 A.C. p. 34 (at p. 57) put it only slightly differently but with the same meaning - "something so unfair and wrong that the court should not allow a prosecution to proceed with what is in all respects a regular proceeding."

8. So much then for the approach I must adopt bearing in mind that, as Mr. Gerber indicated, the prosecution should not be allowed a second bite at the cherry where their own shortcomings have created the situation whereby a trial has been aborted. My later comments will make it clear that I do not accept that that is the criterion, but only an argument, though an important one.

9. I took the view initially that there was a really strong argument for saying that once Police Officers had been tested and exposed by cross-examination on a voir dire, and cross-examined again on the trial proper, the Defence was essentially hampered, particularly where the case stood or fell on the credibility of those officers. By the time they were next cross-examined - on a voir dire prior to a retrial - they would have closed any gaps or changed their stance, and assuming their evidence was admitted, on the retrial itself. However, as I am rightly reminded, retrials are common; they sometimes follow a successful appeal to the Court of Appeal; there are many circumstances in which juries are discharged and a retrial follows. In those cases witnesses who have already been cross-examined come to give evidence again knowing what line of cross-examination will be pursued. They all have the opportunity to change their stance or amend their evidence in the light of what happened the first time around. The Defence can then profit significantly from highlighting these changes. I also remind myself that there are occasions when a trial is completed and a jury are unfortunately, unable to agree. Normally a retrial is ordered then with the whole procedure being repeated and all witnesses subjected again to examination and cross-examination. A voir dire may have to take place a second time.

10. Although I accept that there is the basis for thinking that there is indeed disadvantage to the Defence in not being able to cross-examine Police Officers with all the freshness that obtains on the first occasion I have concluded that this is not such substantial prejudice as should cause me to stay this trial. It it true that I put to Crown Counsel that a retrial would prejudice the Defendant and that it would not, or could not, be a fair one. I am bound to say a degree of judicial irritation may well have caused me to take a particularly firm line in seeking to have the matter considered by the Crown so as to put it in its proper perspective. Now with the considerable assistance of Mr. Gerber and Mr. Arthur, from their different standpoints, that has been achieved. The disadvantage if it is such, accruing to the Defence, may well turn out to be an advantage, but whatever the possibilities, I am satisfied that a retrial, even though preceded by a voir dire, will not be something so unfair and wrong, as to cause me to prevent it taking place. In view of the opinion I formed of the Senior Police Inspector on the voir dire, I think it proper and in the interests of fairness, that the retrial should not take place before me.