HKSAR v. CHAN KAU TAI

 CACC26/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 26 OF 2004

(ON APPEAL FROM HCCC 333 OF 2002)

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REASONS FOR DECISION

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Hon Ma CJHC (giving the reasons of the Court) :

1. By a Notice of Application for leave to appeal against conviction dated 26 January 2004, the Applicant applied for leave in respect of 10 charges of his (he was a public servant) having accepted advantages contrary to sections 4(2)(c) and 12(1) of the Prevention of Bribery Ordinance, Cap.201.  The trial took place before Pang J and a jury from 20 October 2003 to 5 January 2004 (when he was sentenced to a term of 7 years’ imprisonment).

2. Initially, the application for leave to appeal was to be heard on 25 January 2005 before a differently constituted court.  However, it emerged over the course of that hearing that the Applicant wished, in a material way, to supplement his Grounds of Appeal.  One of the original grounds of appeal (contained in the Initial Grounds of Appeal against Conviction dated 26 January 2004) had been that the prosecution failed during the trial to disclose previous convictions of a material witness (this being ICAC Chief Investigator Eric Yang).  In the Perfected Grounds of Appeal dated 30 June 2004, this ground was expanded to include the non-disclosure of a written disciplinary reprimand as a result of one of the convictions.  This was further amended by leave at the 25 January 2005 hearing to include another disciplinary reprimand relating to C I Yang that had not been disclosed to the defence at trial.  At that time, a number of affidavits were before the Court regarding the issue of non-disclosure.

3. Following some inquiries that were made of counsel who had conducted the prosecution at the trial, a further affidavit was produced (from that counsel) on 26 January 2005.  The Applicant, through his counsel (Mr Michael Blanchflower SC), then submitted on the material before the Court that he wished to raise the issue of bad faith on the part of the ICAC, meaning the deliberate concealment of the previous convictions and disciplinary reprimands of C I Yang.  In view of this development, an adjournment therefore became necessary, not least because live evidence was now required to be heard by the Court regarding the non-disclosure and bad faith issues.

4. The Perfected Grounds of Appeal were then substituted on 21 February 2005 to make clear the allegation of bad faith.  Fresh dates were fixed for the hearing of the appeal before the present Court and this was to take place on 6 December 2005.

5. Some nine months later, by a Notice of Motion dated 26 November 2005, the Intended Intervener, the ICAC (“ICAC”) applied for leave to intervene in the present appeal.  The basis for the application was stated in the following paragraphs in the supporting affirmation : -

“11.  After the initial Appeal hearing, the Appellant changed his focus on the significance on non-disclosure of Mr. Yang’s records.  He had initially raised as a ground of Appeal that he was deprived of the opportunity to cross-examine Mr. Yang on his credibility both in the voir dire proceedings as well as at trial proper.  In his substituted Perfected Grounds of Appeal filed on 21^st February 2005, it can be seen that the prosecution’s failure to disclose Mr. Yang’s records is said now to amount to a deliberate failure to disclose them to the Appellant.  It is now clear from his substituted Grounds of Appeal filed on 8^th November 2005 that the Appellant is now alleging bad faith on the part of the ICAC amounting to criminal wrongdoing.

12.    It was on this basis that Counsel for the Respondent Mr. Kevin Zervos S.C. came to the conclusion that the Department of Justice could not represent the interests of the ICAC while he was also discharging his duties as a public prosecutor.  He believed that independent representation would have to be arranged for the ICAC if the conduct of its officers during the criminal investigation was going to be inquired into by this Honourable Court.  It may be that at the adjourned hearing findings of fact will be made which may be adverse to the ICAC.  As Counsel for the Respondent, it is Mr. Zervos’ duty to assist this Honourable Court in order to achieve a just disposal of the Appeal and he felt that he could not in the process also take into account the interests of the ICAC or its individual officers.”

6. At the hearing of the present application, after hearing submissions from counsel, we dismissed the motion, reserving the question of costs and stating that the Reasons for Decision would be handed down in due course.

7. Intervention by outside parties (by which I mean parties other than the named parties to the actual cause or matter before the court) is much more common in the civil context than the criminal.  This is not to say that intervention is not possible in criminal matters but it must, we think in the absence of statutory authority, be almost unheard of.  While in civil matters, the court’s discretion (which is largely governed by Rules of Court) to allow intervention by non-parties will generally be exercised where the intended intervener has a legitimate interest in the litigation (whether legal or financial) and it is just and convenient to allow this interest to be determined by the court (see here for example, RHC O.15 r.6(2)(b)(ii) and Hong Kong Civil Procedure 2006 Vol.1 at paragraph 15/6/7), the position is markedly different in criminal matters.  Here, the emphasis is on the trial of the accused and this involves only two parties : the prosecution and the accused.  The court’s criminal procedures are designed to enable the just and efficient resolution of the prosecution of an accused person.  That is why the representation before the courts in criminal matters almost invariably involves only the prosecution and the accused, while the interests of any other persons, such as witnesses or the investigating authorities, though affected (even seriously so), are not represented.  As stated above, while we are prepared to accept that a jurisdiction does exist to allow intervention in criminal matters, it is difficult to conceive of any situation in which this will be permitted.  Whereas in civil matters, intervention is permitted so as to avoid a multiplicity of proceedings, by contrast in criminal matters, the only emphasis can only be on the trial of the accused.

8. We have so far dealt with the principles governing intervention from the point of view of the court’s inherent jurisdiction.  Where statute allows intervention in criminal matters by outside parties, the position is of course quite different and any intervention will then be governed by the terms of the statute in question.  One example is the right of parties affected by a compensation or restitution order to be heard on appeal : - see Rule 25 of the Criminal Appeal Rules, Cap.221A.  Another is the right to intervene in private prosecutions by the Secretary for Justice : - see section 14 of the Magistrates Ordinance, Cap.227.

9. In the present case, while admittedly the issue of bad faith and non-disclosure was directed at the ICAC rather than the Department of Justice or prosecution counsel, on analysis the complaint could only have been directed at the prosecution.  What was at the heart of this ground of appeal was the extent of the duty of disclosure on the prosecution’s part.  Whether one regards the ICAC as being a part of the prosecution or merely an investigating authority is immaterial for present purposes; the responsibility for full and proper disclosure lies with the prosecution and the prosecution must take responsibility for any deficiency on the part of the investigating authorities (be it the police or, as in this case, the ICAC) : - see HKSAR v Lee Ming Tee and The Securities and Future Commission (2003) 6 HKCFAR 336 (Lee Ming Tee (No.2)), at 387H-291D (especially paragraphs 158, 161, 163 and 168).  The ICAC did not have a direct duty of disclosure to the Applicant separate from the prosecution : - see Lee Ming Tee (No.2) at 391C-D (paragraph 169).

10. Curiously, in the Lee Ming Tee (No.2) case just referred to, the Court of Final Appeal did allow an intervention by the SFC and it was on this legal basis that the ICAC sought to justify its application to the Court to intervene in the present application.  However, the reasons for allowing the SFC to intervene in the appeal before the Court of Final Appeal in Lee Ming Tee (No.2) are obscure and do not appear in the judgment of the Court.  It is apparent from the Determination of the Appeal Committee of the Court of Final Appeal giving leave in that case (dated 11 February 2003) that the Committee was of the view that leave to intervene should be given to the SFC but, as noted in the Determination, this was a decision that was made “without submission” being addressed to the Committee.  Section 385 of the Securities and Futures Ordinance, Cap.571 expressly excludes criminal proceedings from the ambit of judicial proceedings in which the SFC may seek leave to intervene.  In our view, the decision giving leave to the SFC to intervene in that case was a special one and cannot provide any justification or guidance for a general right to intervene in criminal matters.

11. Before us, Mr Kevin Zervos SC (for the Respondent) clarified his position with regard to what was contained in the passages from the affirmation in support of the ICAC’s application to intervene (see paragraph 5 above).  The Respondent’s position was not that it could not represent the interests of the ICAC while discharging its own duties as the prosecution.  Rather, he had merely suggested to the ICAC whether their interests needed to be separately represented.  His position was that, ultimately, he was not embarrassed nor did he see any conflict of interest between the Respondent and the ICAC.

12. In these circumstances, Mr Dykes SC withdrew the application for leave to intervene.  He was in our view right to do so.  There was simply no justification to intervene.  Our attention was not drawn to any statutory provisions allowing the ICAC to intervene in the appeal.  All this was quite apart from the delay in bringing the application.  Accordingly, the motion was dismissed.  The issue of costs was reserved (as noted above) and we now invite the parties to make their submissions in this regard in due course.