R. v. TAN SOON GIN, GEORGE

HC Case No. 443 of 1993
and 50 of 1994

Headnote

Application for permanent stay of proceedings - delay of ten years since charge - abuse of process - prejudice arising from delay, pre-trial publicity and poor health.

IN THE HIGH COURT OF HONG KONG

__________________

RULING

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Application by George Tan Soon-gin
for Permanent Stay of Proceedings

1. Background

There has been considerable public interest, ever since the collapse in 1983 of the so-called 'Carrian Empire', in the proceedings taken against the individuals who found themselves as a result facing fraud and, in some cases, corruption allegations. There cannot be many in Hong Kong who will be unaware of the general nature of the publicity since that time, surrounding the various investigations and the cases that later came before the courts, most of which has suggested that the corporate empire was effectively built up and maintained with the help of fraudulent or corrupt transactions.

George Tan Soon-gin (the Applicant) was the Carrian Chairman and, from the time of his arrest in 1983, he has been the subject of considerable media attention. There can be no mistaking that the general effect of this publicity has been adverse to the Applicant. In many ways his name is so inextricably linked with Carrian and, in turn, Carrian with fraud and corruption, that the name of George Tan may have become, in the minds of many, synonymous with fraud.

In the years since the collapse there have been numerous arrests. The so-called 'Carrian Trial' and the pleas of guilty by others in related cases, have all been given high profile attention. Every new development of the Carrian story has meant that it has never been allowed to fade from memory.

During this time, the Applicant's health has deteriorated. He had a heart attack which was followed some years later by a stroke. He has been fortunate that modern surgical skills and the medicines he has been prescribed have stabilised his present condition. He has received the best medical advice with the result that he has been able to carry on a reasonably normal lifestyle. Additionally he has long suffered from a significant degree of deafness which in recent years has become worse. The once vibrant business tycoon has become a shadow of the man he once was. There can be little doubt that the stress of awaiting trial for so many years on the charges now before this court has also had some impact upon him.

2. Introduction

It is with this background that an application has been made for this prosecution to be stayed permanently on the ground that it would be an abuse of the process of the court to allow him now to be tried on this indictment.

The three limbs of the application relate to the delay in bringing the case to trial, the adverse pre-trial publicity and the present state of the Applicant's health.

Legal argument, together with the evidence of 5 expert witnesses and a medical practitioner, took eleven days to complete. I have additionally had to consider 3,534 pages of narrative contained in 2 affidavits prepared on behalf of the Applicant supported by a further 11,885 pages of exhibits and 16 medical reports. The Respondent has replied with an affidavit of 349 pages from Mr. Roger Best of Clifford Chance supported by 27 exhibits and 7 medical reports. I have also considered the skeleton arguments, together with the legal authorities and texts, provided to me.

It has been argued that the Applicant cannot receive a fair trial at this stage of proceedings, so long after enquiries first began into his allegedly fraudulent and corrupt activities in the years between 1979 and 1983.

It is accepted on both sides that the court has a discretionary, though rarely used, power to halt proceedings where it is satisfied that there is a serious risk that the accused cannot receive a fair trial.

'Stay' applications of this kind are often referred to by the phrase 'proceedings for abuse of process'. This is misleading as it suggests that the prosecution has in some way improperly manipulated the procedures of the court. I cannot find any justification for saying that anything which has contributed to the delays that have afflicted this case, has been on account of bad faith on the part of the prosecution at any stage of its development. With all his customary wisdom and fairness, Sir Michael Ogden Q.C. has not sought to suggest anything to the contrary. He, together with Mr. Michael Lunn Q.C. and Miss Julia Lau, have presented these submissions for the Applicant on the footing that there were serious errors of judgment on the part of the prosecution which have led cumulatively to many years of unnecessary delay. As a consequence of those delays, it is said that serious prejudice has been caused to the Applicant.

Counsel for the Respondent have only recently been instructed in terms of the long and remarkable history of the case. When I deal with all matters concerning material delay, they bear no personal responsibility whatsoever. On the occasion I sentenced Rais bin Saniman (Rais) a year ago I said that counsel who had now been instructed had injected a much-needed sense of direction and leadership. This has unquestionably proved to be correct.

3. Outline of Applicant's Submissions

(A) 3 Grounds of Application

Briefly I propose to turn now to the way in which each side presents its submissions, firstly taking the Applicant's three separate categories of argument.

(i) Delay

The main argument adduced on behalf of the Applicant so far as delay is concerned is that it has occurred because of the way in which the prosecution, at an early stage, chose to present its case by insisting on joining Lorrain Esme Osman (Osman) in the indictment. This and two other major policy decisions relating to outstanding charges on other indictments have together been the principle causes of the exceptional length of the delay in bringing the Applicant's case to trial. Osman was in custody in June 1987 awaiting extradition from England, yet he managed to avoid being brought to Hong Kong for a further five and a half years by an unprecedented series of legal manoeuvres. It is submitted that the Applicant had made it known from 1990 onwards that he wanted to be tried without delay. This was made clear at remand hearings, and in correspondence which had additionally kept the prosecution informed of his deteriorating health.

There are numerous contributory factors which have been the subject of complaint. These in general terms relate to the manner in which the prosecution was conducted whilst the proceedings in Malaysia were in progress and to the service of documents and other information on the defence. It is said that this has added to the painfully slow progress of a case which has managed to accumulate more than 41/2 million pages of documentation.

The main prejudice which it is said has resulted from the combination of factors relating to delay is that inevitably memories of events will have become dim and vague. It is said that this is not a case which depends so much upon documents as upon the credibility of three witnesses in particular, added to which some documents which may be of vital significance have gone missing.

(ii) Pre-trial Publicity

It is argued that ever since the Applicant's arrest in 1983, on what I shall refer to as the 'Carrian' charges, constant repetition of his name in media reports has effectively branded him a fraudsman. It is submitted that the publicity has been so extensive that a jury could not now be found which was not contaminated by the continual prejudicial effect of adverse media publicity spread over 13 years.

(iii) Health

It is agreed on both sides that the Applicant suffers from a serious heart condition. It is submitted on his behalf that this is so serious that he would not be able to withstand a trial estimated to last about one year. In particular, he might feel unable to give evidence in the light of medical advice given to him that the stress of doing so could be life-threatening.

(B) Summary

Taking these arguments individually and collectively, it is submitted that the Applicant can show, on a balance of probabilities, that he has suffered serious prejudice to the extent that no fair trial can now be held. In putting his submissions that way, Sir Michael Ogden Q.C. has taken the test stated by Lord Lane C.J. in Attorney General's Reference (No.1 of 1990) (1992) 95 Cr.App.R. 296 and approved in the Privy Council in George Tan Soon Gin v. Judge Cameron and Another (1993) 96 Cr.App.R. 172; (1992) 2 A.C. 205.

Putting the matter shortly, it is the Applicant's case that this is a clear example of 'cause and effect'. The prosecution has caused a delay by the approach it has adopted with the effect that great prejudice has resulted. The Applicant, it is submitted, has done nothing of any substance to contribute to the delay, and he has remained in Hong Kong, as a condition of his bail, ready and willing to be tried.

(C) Bill of Rights

It is accepted on both sides that the right to trial without undue delay is an important one. The submissions have included consideration of Section 6 and Articles 5, 10 and 11 of the Hong Kong Bill of Rights Ordinance Cap. 383.

Article 5(3) reads:

'Anyone arrested or detained on a criminal charge shall be brought promptly before a judge ..... and shall be entitled to trial within a reasonable time or to release.'

Article 10 reads:

'......... everyone shall be entitled to a fair and public hearing ......'

Article 11(2) reads:

'In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality .....

(c) to be tried without undue delay.'

The definition of 'undue' in the New Shorter Oxford English Dictionary is:

'2. That ought not to be or to be done; inappropriate, unsuitable, improper, unrightful, unjustifiable.

3. Going beyond what is warranted or natural; excessive, disproportionate.'

Under Amendment VI to the Constitution of the United States of America:

'..... the accused shall enjoy the right to a speedy and public trial' .....

The Bill of Rights confers no right to a speedy trial, but instead to trial without undue delay. It does, however, under Section 6, give a power to stay proceedings in the following terms:

'Section 6(1) A Court or tribunal -

(a) in proceedings within its jurisdiction in an action for breach of this Ordinance; and

(b) in other proceedings within its jurisdiction in which a violation or threatened violation of the Bill of Rights is relevant,

may grant such remedy or relief, or make such order, in respect of such a breach, violation or threatened violation as it has power to grant or make in those proceedings and as it considers appropriate and just in the circumstances.'

It seems to follow from this that the court is given no power to do anything that it would not otherwise have power to do, and that whatever it does must be just having regard to the prevailing circumstances.

Lord Woolf in Attorney-General of Hong Kong v. Cheung Wai-bun (1994) 1 A.C. 1 and (1994) 98 Cr.App.R. (at page 23) said:

"Their Lordships recognise that it is possible to argue that there is a difference of approach at common law and under the Bill. However, as any difference in the approach to be adopted is likely to be of significance in a very small minority of applications for stay, their Lordships have decided that it is preferable not to determine the extent of the difference in this case, where it would be merely an academic exercise, but to leave it to be determined in a case where the existence of the difference would materially affect the result of the appeal. The issue is one which can be more satisfactorily examined in the context of a case where a difference in approach could have practical consequences."

Returning to the present application, Sir Michael Ogden Q.C. has realistically conceded that while the Bill of Rights adds nothing to the Common Law position, it underlines and gives greater emphasis to the principles to be applied.

I find myself in complete agreement with the way he puts this aspect of the matter and if further support were needed, Bokhary J.A. in The Queen v. William Hung (1994) 1 HKCLR at p.56 said:

"..... is the present case an exceptional one in the sense of being a case in which a stay can be obtained in reliance upon the Bill of Rights even though the stay application cannot pass the test formulated at common law? It is on this question that both counsel have concentrated. In our opinion, the answer to the question is "No". Such exceptions would be rare. That is, of course, not because of any low human rights content in the Bill of Rights. Rather, it is because the human rights content of criminal justice at common law in this day and age is already high."

4. Outline of Respondent's Submissions

The reply made by Mr. Martin Wilson Q.C. on behalf of the Respondent is in essence that this court can only grant a stay of the proceedings if it is satisfied that it would be an abuse of the process of the court for the case to proceed to trial and, to be satisfied of that, it is not sufficient for the court simply to mix together the medical condition, the adverse publicity and the long delay. One of those bases must at least be made out. If one ground is not capable of providing the basis for a stay, then the aggregation of others equally incapable of doing so would be without effect. He submits that it would only be if the court was satisfied that the case had been made out in respect of one or more bases and were to consider exercising its discretion to stay, that other bases should be considered.

The Respondent concedes that the Applicant has a serious condition of the heart, but it is submitted that this could never be a ground for staying proceedings on its own because, if it was, anyone who had a serious medical condition would never be tried.

Whilst the Respondent agrees that pre-trial publicity could lead to a trial being hopelessly prejudiced by unremitting, sensational, inaccurate and unfair reports, I am asked to find that in this instance the publicity has amounted to fair reporting in a free society about a case of immense public interest and concern. In addition it is submitted that it is well established that juries are quite capable of trying cases on the evidence and not on what they have read in the newspapers or seen or heard elsewhere in media reports.

It is submitted that delay by itself, where no serious prejudice has been caused, cannot amount to a ground for staying proceedings. In any event, it is argued for the Respondent that there has not been undue delay. The nature and complexity of the proceedings have necessitated lengthy preparation, and there are important contributory factors some of which have been the fault of the defence. Mr. Wilson Q.C. draws attention to one major example of this which led to a delay of several years in the evidence-gathering proceedings in Malaysia. This was an essential exercise before the trial could begin, yet the Applicant joined Osman in a technical objection which then had to await an appeal in the Malaysian courts. It is said that, if this was not a delaying tactic, it was hardly consistent with someone who was anxious to expedite his trial.

There have also been other cases which have had some effect on the timing of this trial. There was the 'Carrian' case that lasted 18 months in the High Court, to be followed by a linked case, known as 'Gammon House', on which the prosecution eventually decided not to proceed. In the District Court there was a wholly separate indictment in respect of Barclays (Asia) and West Deutsche Landesbank Girozentrale ('WestLB').

The Respondent has also submitted that the Applicant has suffered no real prejudice at all and may even, in some respects, have positively benefited from the delay. To take three examples, it is pointed out that probably the worst publicity came about in a period that is now over a decade ago; that whilst many documents appeared to be missing some years ago, a great many of these have been traced in recent years, and anyway their disappearance was nothing to do with delay; and that whilst the Applicant's medical condition may be serious, this has now been stabilised following the precarious state in which he found himself between his heart attack and his stroke between three and seven years ago.

5. Brief Chronology of Events

Before turning to the legal framework within which I must make my ruling, it would be sensible if I began with a brief chronology of events taking at this stage only the most significant factors over the period of time under consideration.

The Applicant is charged in an indictment containing ten counts. Four of those counts allege conspiracy to defraud Bumiputra Malaysia Finance Ltd. (BMFL) and Bank Bumiputra Malaysia Berhad (BBMB). There are five counts alleging the offering of an advantage contrary to section 9(2) of the Prevention of Bribery Ordinance Cap.201. The remaining count is for false accounting contrary to section 19(1)(a) of the Theft Ordinance Cap.210. The period of time encompassed by the indictment is from 1 November 1979 to 31 October 1983.

The Applicant was first made the subject of investigation on 27 April 1983, when inspectors were appointed to investigate the affairs of the Carrian Group of companies (Carrian). The following events then took place:

On 30 April 1983 I.C.A.C. officers arrested the Applicant.

On 2 October 1983 the Applicant was arrested by Commercial Crimes Bureau.

On 3 October 1983 the Applicant was charged with a 'holding' offence.

On 21 May 1984 the Applicant was charged with two offences of conspiracy to defraud, one of which was later the subject of the 'Carrian' trial.

Between 25 June 1984 and 3 October 1984 the Applicant gave evidence to the Inspectors for the Carrian Group.

Between 10 October 1984 and 9 April 1985 committal proceedings took place in relation to both the 'Carrian' and the 'Gammon House' conspiracies.

By this stage, the fraud investigation in respect of BMFL and BBMB was under way, but it was not until 31 January 1986 that the Applicant was charged in relation to these.

On 19 February 1986 the 'Carrian' trial began, ending on 22 September 1987 with the acquittal of all defendants after submissions of no case to answer.

Meanwhile extradition proceedings were commenced in relation to others who figured in the BMFL and BBMB frauds, notably Mohamed Hashim Shamsudin (Shamsudin) and Osman. Shamsudin voluntarily returned to Hong Kong and, on 14 January 1987, he pleaded guilty. After a review of his original sentence he received, on 23 August 1987, a total of ten years' imprisonment.

Rais was arrested in Paris on 27 April 1987 and Osman was remanded in custody in London pending extradition on 1 June 1987.

A series of legal manoeuvres in the years that followed, illustrate how Rais and Osman used every conceivable technical argument to delay their return to Hong Kong for trial. In the event Osman was not flown to Hong Kong until 16 December 1992.

Following the Applicant's acquittal in 'Carrian', the BMFL charges were adjourned to 4 November 1988 following a series of formal remands.

Three notable events occurred during that time. Firstly, the 'Gammon House' conspiracy count which had been severed from the 'Carrian' trial indictment was dropped by the prosecution when no evidence was offered against all the defendants, including this Applicant, on 20 May 1988.

Secondly the Applicant was charged on 5 July 1988 with further serious offences, this time in relation to the West LB case.

Thirdly, when the prosecution attempted to gather vitally important evidence for the BMFL trial in the Malaysian High Court, under an Order dated 26 April 1988, this was challenged by both Osman and the Applicant. The validity of the order was upheld, and the application was dismissed on 6 September 1988. However, the examination of witnesses was stayed, despite objection from the prosecution, pending appeal to the Supreme Court of Malaysia. Leaving other matters aside for the moment, and continuing with the Malaysian chronology for the sake of convenience, further proceedings were brought by Osman on 5 June 1989 to challenge the Malaysian evidence-gathering. Those proceedings were struck out as an abuse of process on 6 January 1990. After this decision was upheld in the Malaysian Supreme Court on 6 March 1991, solicitors acting for the Respondent and the Applicant agreed that the Applicant would withdrew his pending appeal provided the prosecution issued a third letter of request to Malaysia for the collection of evidence there. On 4 September 1991, this letter of request, naming 74 witnesses, was issued. Evidence-taking finally began on 16 March 1992, and was only comparatively recently completed by which time the transcripts amounted to approximately 10,000 pages.

Returning now to 1989, it was then that the Applicant's health began to break down. It was discovered, following a coronary angiogram, that he had suffered a mild heart attack of which he had had no knowledge.

In September 1989, the Applicant underwent angioplasty.

On 24 April 1990 the West LB charges were transferred to the District Court.

On 15 August 1990, the BMFL charges were again before the Magistrates' Court, but on this occasion the Defence objected to any further remand. The Magistrate remanded the Applicant for only four months. When the case came back before the Court, in December 1990, despite objections it was then adjourned to 5 June 1991. At subsequent remand hearings the case was adjourned by almost two years by which time Osman had arrived back in Hong Kong.

On 31 December 1992 the Applicant suffered a stroke.

On 3 May 1993 both Osman and this Applicant appeared in the dock at Western Magistrates Court. Osman entered a plea of guilty to a single conspiracy charge and he was sentenced to 12 months' imprisonment at the High Court on 24 June 1993, having resisted extradition for a total of 7 years of which the last 5 1/2 years were spent in custody.

On 29 November 1993, the BMFL charges against the Applicant were transferred to the High Court for trial following a history of remands in the Magistracy spanning almost exactly eight years since his arrest on those charges.

The West LB case was also subject to a history of adjournments and has still not been tried to this day.

Rais was flown from France to Hong Kong on 2 February 1994 having resisted all efforts to have him extradited for a period of almost seven years. He was sentenced to 5 years' imprisonment, having pleaded guilty to two counts of conspiracy to defraud on 15 March 1995.

It is now almost 13 years since the Applicant was first arrested in April 1983 and over ten years since the Applicant was arrested specifically for the BMFL offences. Whilst the chronology is not disputed, some of the reasons for delay have become serious issues of dispute which require careful consideration in themselves.

6. Abuse of Process - Legal Principles to be Applied

I propose now to turn from the general factual background to the Common Law principles that apply when a court is considering an application for a permanent stay of the proceedings on the ground of delay. It is common ground that four basic principles apply:

(1) A court which is endowed with a particular jurisdiction has powers, inherent within its jurisdiction, to ensure that its process is not abused. See Connelly v. D.P.P. [1964] A.C. 1254 (in particular the speeches of Lord Morris of Borth-y-Gest at p.1301, Lord Devlin at p.1346/7 and Lord Pearce at p.1361).

(2) The power of the court to stop a prosecution should only be exercised in the most exceptional circumstances. See Attorney-General's Reference (No.1 of 1990) [1992] 95 Cr.App.R. 296; 1 Q.B. 630.

(3) The power is discretionary.

(4) The Applicant must prove on a balance of probabilities that owing to the delay he has been seriously prejudiced to the extent that no fair trial can be held. See Attorney-General's Reference (No.1 of 1990).

What I propose to do, therefore, is to review some of the legal authorities within the framework of (1) to (4). I shall then go on to consider the reasons for the delay looked at from both sides, and at the prejudice which it is submitted the Applicant has suffered as a consequence of that delay. Having done this I shall look separately at the submissions concerned with publicity and the Applicant's health to see whether or not a stay should be granted on either or both of those grounds.

In Attorney General's Reference (No.1 of 1990) 95 C.A.R. 296, two questions were posed to the Court of Appeal in England. These were (at page 298):

'(1) Whether proceedings upon indictment may be stayed on the ground of prejudice resulting from delay in the institution of those proceedings even though that delay has not been occasioned by any fault on the part of the Prosecution.

(2) If the answer to (1) is in the affirmative, what is the degree of (a) the likelihood and (b) the seriousness of any prejudice which is required to justify a stay of such proceedings.'

It was held that in answering the first question, and because of the infinite variety of circumstances that might arise, the answer should be a qualified affirmative. However even where the delay was unjustifiable, the imposition of a stay should be the exception rather than the rule. Rarer still would be the cases where a stay could properly be imposed in the absence of any fault on the part of the complainant or the prosecution and (see page 303):

'Delay due merely to the complexity of the case or contributed to by the actions of the defendant himself should never be the foundation for a stay.'

I shall repeat this important passage when quoting it in the context of Lord Woolf's judgment inAttorney-General of Hong Kong v. Wai-bun (sic) (1994) 98 Cr.App.R. 17.

Whilst, therefore, the question of justification by the prosecution for any delay that has occurred is still a relevant consideration, it is no longer a pre-condition that the delay was unjustifiable, for making a finding that there has been an abuse of the court's process.

In looking at the history of events in the present case there is no doubt in my mind that the Applicant has contributed in some respects to the delay which has occurred in bringing this case to trial, but that by itself does not resolve the issue. As Lord Lane C.J. said, when giving judgment in Attorney General's Reference (No.1 of 1990) at p.303, such actions on the part of a defendant should never be the 'foundation' for a stay. It follows in my judgment that, if the contribution made by the Applicant was marginal and insignificant, in terms of the overall length of delay, it could hardly be regarded as a 'foundation'.

Another factor to be taken into account is that some delay may be as the result of a defendant taking a course of action in pursuance of some legal right. The court will then have to inquire into whether this is merely a device to delay the inevitable and, if so, to what extent it has made a contribution to the overall delay. This must be a question of degree. The more that this Applicant is shown to have contributed to the delay, the less he will be able to rely on delay as a reason to grant a stay of proceedings. I will deal with this aspect when later looking at the detailed reasons for delay.

Lord Lane C.J. also in the course of his judgment at pp.302/303 adopted the reasoning of Brennan J. at pp.592 to 599 in Jago v. District Court of New South Wales that was decided in the High Court of Australia in October 1989 and is reported at 87 A.L.R. 577. In Jago the opportunity was taken to review the whole of the law as it then applied to abuse of process by reason of delay in countries with a common law system. It is to be noted that Brennan J. took a more restrictive view than the other four judges who comprised the court. A sentence from the headnote reads:

'The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused's right to be protected against unfairness in the course of criminal proceedings include the length of delay, the reasons for the delay, the accused's responsibility for asserting his rights and the prejudice suffered by the accused.'

The more detailed principles enunciated in Jago are well-known and have been repeated in numerous judgments on the topic since. However it is worthy of note that Jago (see p.604 of the judgment) was a case where the appellant had:

"..... lost no witnesses. He claims no special prejudice, and he acknowledges that the case for the prosecution is essentially a simple one: simple to present and therefore, by inference, simple to test, to criticise and possibly, to answer."

Another case in which a thorough review of this aspect of the law was conducted was The Queen v. Charles Cheung Wai-bun (Case No.160/1989). Judgment was delivered by Duffy J. on 1 July 1992 when he granted the stay application. The matter went to the Privy Council where it is incorrectly reported as Attorney-General of Hong Kong v. Wai-bun [1994] 98 Cr.App.R. 17; also at [1994] A.C. 1 and (1993) 3 W.L.R. 242 where the full name is correctly stated in the case reports.

Duffy J. dealt in great detail with the position both under the common law and the Bill of Rights. Many of the cases to which reference was made there, were also listed in the authorities supplied to me. Whilst all of these cases are helpful to have in mind as to the principles to apply, I bear also in mind that each case is very different and that this case must be judged on its own merits.

When Duffy J.'s ruling was challenged in the Privy Council, Lord Woolf, who read the judgment of the Board in March 1993, reviewed the material parts of Duffy J.'s ruling as well as the factual background, and I shall turn straightaway to this (at page 19, 98 Cr.App.R.):

"The Respondent had been arrested on August 31 1988, and he was charged on May 6 1989. He was one of six defendants who were charged in connection with a cheque cycle conspiracy designed to defraud Hong Kong Industrial and Commercial Bank ('HICB'). The Respondent was charged with one offence of conspiracy to defraud contrary to common law (Count 1) and two offences of false accounting, contrary to s.19(1)(a) and (b) of the Theft Ordinance of the Laws of Hong Kong (Counts 2 and 3).

Count 1 was alleged to have been committed between 1979 and March 1982 with the complicity of employees of HICB including the Respondent, who was the General Manager of HICB, and employees of a second bank, First Hong Kong ('FHKC'). Count 2 was alleged to have been committed between February 1982 and June 1982 with the object of covering up the alleged conspiracy; and Count 3 in October 1982.

The proceedings against the Respondent and his co-accused were the first proceedings conducted under the provisions of the Complex Commercial Crimes Ordinance of the Laws of Hong Kong. The offences were serious and cheques to the value of US$13.24 million were dishonoured by the banks in the United States and ultimately as a result of the conspiracy HICB was faced with an indebtedness to FHKC amounting to approximately US$27 million.

The first preparatory hearing under the Complex Commercial Crimes Ordinance into the offences was held by Duffy J. on October 28, 1989. On September 5, 1990, on the application of the other defendants, Duffy J. ordered the Respondent to stand trial separately from his co-accused and directed that the trial of the co-accused should begin immediately. On September 24, 1990, after one accused had pleaded guilty to the offence of conspiracy, the trial of the other co-accused commenced and on December 6, 1990, two were convicted of conspiracy and one accused was also convicted of the offence of false accounting. They were sentenced to terms of imprisonment ranging from 41/2 years to 6 years' imprisonment. The trial judge was Duffy J.

Originally, the trial of the Respondent was re-scheduled to commence on December 2 1991. However, because of counsel being unavailable and the prosecution being involved in extradition proceedings in Canada involving a co-accused, the commencement of the trial was deferred to April 28, 1992. Having previously considered a number of other applications, including an application on behalf of the Respondent that he should disqualify himself, which he rejected, Duffy J. commenced the hearing of the Respondent's application for stay on May 7, 1992. The hearing of that application continued for 18 days during which expert medical evidence was called on behalf of the prosecution as well as the Respondent. The Respondent contended that he was entitled to a stay both at common law for delay amounting to an abuse of process and under the provisions of Articles 11(2)(c) and 10 of the Hong Kong Bill of Rights Ordinance."

The judgment then (and later at page 23), briefly touches upon the Bill of Rights aspect to which I have already made reference. Next, the court considered the point that had arisen as to the technicalities of an appeal from Duffy J. directly to the Privy Council, and affirmed the procedure which was decided in Tan Soon-gin v. Judge Cameron [1993] 96 Cr.App.R. 172 and (1992) 2 A.C. 205 ('The Tan Case'). The judgment then confirmed the reluctance of the Privy Council to interfere where an appeal is brought by way of special leave and especially in this appeal where Duffy J. was intimately acquainted with the issues, having conducted the trial of other defendants in the same case.

There are, of course, many parallels to be drawn between the case which had come before Duffy J. and the case that is now before me. I digress to say that whilst I have not, unlike Duffy J., had the benefit of a trial, I have been involved with the present case since 28 February 1994 when the first Preparatory Hearing took place in the High Court. I have been involved in all the hearings since then, including the disposal of Rais' case. The paperwork for the trial and most of that which relates to the stay application has been in my possession for many months. I took a number of weeks before this application began to read most of the more important material contained in about 50 box files prepared for the stay application so that I could be conversant with the issues to be raised and the factual and legal context in which they were set. The high standard of presentation on both sides has made that task a great deal easier than it would have been, had less capable hands prepared the large volume of documentation I have had to consider.

Returning to the judgment of Lord Woolf, he said (at page 21):

"Included in the findings made by Duffy J. was a finding that, in preparing the prosecution, there had been a failure by the prosecution to take account of the defendant's position so that the Crown were responsible for the need to order a separate and subsequent trial of the Respondent. In addition he made a finding that the defendant had recently suffered a serious blood loss from a bleeding duodenal ulcer and that a possible, if not the probable, cause for this condition was the stress to which the defendant had been subjected due to the long delay in his criminal proceedings. Duffy J. therefore had 'no doubt whatsoever that the very long period of waiting for his trial has seriously prejudiced the defendant's general health'. He was further of the view that there had been 'excessive delay in this case, none of which has been caused by the defendant. He has been seriously prejudiced as a result of that delay and the fairness of these proceedings have been jeopardised.'

Having regard to these findings and the proper approach to them on this appeal, the only possibility which the Attorney-General has of succeeding on this appeal is if he can point to some serious misdirection by Duffy J. which undermined his conclusions. However, Duffy J., having surveyed the leading authorities from various Commonwealth, European and United States courts, as (counsel for the Attorney-General of Hong Kong) accepts, correctly set out the test which he had to apply when he said:

'Ultimately what has to be determined is whether proceedings can be fair and it is for the defendant, if he is to succeed, to establish on the balance of probabilities that they cannot be fair.'

That test does not materially differ from that laid down by Lord Lane C.J. in Attorney-General's Reference (No.1 of 1990) [1992] 95 Cr.App.R. 296, [1992] Q.B. 630, 631 which was approved by their Lordships' Board in the Tan case (at p.183 and pp.643, 644). Lord Lane stated at p.303 and p.644 A that:

'no stay should be imposed unless the defendant shows on the balance of probabilities that owing to the delay he will suffer prejudice to the extent that no fair trial can be held.'

The approval of the Board in the Tan case of that statement of Lord Lane was made subject to one exception, which the Board identified, namely, as to whether it was appropriate in certain circumstances to presume that the delay has caused prejudice. As to this, Lord Mustill, in his judgment, said (at p.184 and p.255D):

'naturally, the longer the delay the more likely it will be that the prosecution is at fault, and that the delay has caused prejudice to the defendant; and the less that the prosecution has to offer by explanation, the more easily can fault be inferred. But the establishment of these facts is only one step on the way to a consideration of whether, in all the circumstances, the situation created by the delay is such as to make an unfair employment of the powers of the court any longer to hold the defendant to account. This is a question to be considered in the round and nothing is gained by the introduction of shifting burdens of proof, which serves only to break down into formal steps what is in reality a single appreciation of what is or is not unfair.'

The opinion of the Board in the Tan case was given on June 29, 1992, and was understandably not cited to Duffy J. He was therefore unaware of the comment of Lord Mustill to which reference has just been made and so it is not surprising that he should, in his reasons, in accord with the earlier authorities, have used language with regard to the burden of proof shifting which is inconsistent with the correct approach indicated by Lord Mustill. Just after the passage of his judgment which has already been cited in which he set out the test correctly, Duffy J. went on to say that delay could be so excessive that a presumption of prejudice arises and it is for the Crown to rebut that presumption. He also indicated that in his view the amount of delay which has occurred in this case was such as to put the case into 'the category of the presumptively prejudicial'. Duffy J. then went on in his judgment to examine 'whether the Crown has rebutted the inference of prejudice that inevitably arises'. While Mr. Nicholls was justified in his criticism of this approach, he recognised that there were limits to the extent to which he was entitled to pray this in aid since in a subsequent passage of his judgment Duffy J., without relying on any presumption, made a finding that the defendant had actually suffered substantial prejudice. His earlier error does not therefore affect the outcome.

The only criticism which (counsel for the Attorney-General of Hong Kong) makes, which, if it was well-founded, would be of substance, is with regard to Duffy J.'s conclusion that the respondent had not contributed to the delay which had occurred. Mr. Nicholls submitted that this was a conclusion to which the judge was not entitled to come. Indeed, he argued that the only proper approach for the judge to adopt was that the defendant had, or at least could have, contributed substantially to the delay and that this case should have been regarded as falling within an earlier passage of the opinion of Lord Lane C.J., to which reference has already been made. That passage (p.303) is in these terms:

'Delay due merely to the complexity of the case or contributed to by the actions of the defendant himself should never be the foundation for a stay.'

In support of his submission, he relied on the nature of the prosecution's case as to the false accounting charges (Counts 2 and 3). This was that the respondent with others had committed these offences in order to cover up and conceal the conspiracy offence and accordingly by so doing the Respondent had contributed to the delay. Mr. Nicholls submits that the approach of the judge involved ignoring this responsibility of the Respondent. However, the difficulty in the way of Mr. Nicholls' argument is that unless and until the Respondent's guilt or innocence was established at the trial, it would not be known whether the Respondent had been responsible for concealing the fraud offence. His involvement was the very question around which the trial would revolve. Mr. Nicholls had to acknowledge that this was the situation and his solution was that, in cases of this nature, an application to stay the proceedings would have to be deferred until the issue could be resolved at the trial. With respect, this obviously cannot be an acceptable solution because it would mean that in relation to this category of crime a defendant would be deprived of the protection of not having to stand trial where the trial would amount to an abuse of process. In his remark as to the consequences of delay contributed to by the actions of a defendant, Lord Lane was presumably referring to collateral acts or conduct which would not be the subject of the charge and disputed at the trial by the defendant, for example jumping bail. In relation to conduct which will be an issue at the trial, the correct approach is for the judge to bear in mind the nature of the prosecution's case as part of the factual background against which the alleged delay has to be considered and not as necessarily being a bar to the application succeeding. In this case there can be no doubt that Duffy J. was well aware of this and there is nothing in his judgment to indicate that he did not give due consideration to the nature of the prosecution's case in reaching his decision to grant a stay.

The judge in his initial ruling stated that he was 'not insensitive to the predicament of the prosecution' and that his 'decision was taken purely on the particular merits of this defendant's case'. He concluded his reasons by describing the case as being 'exceptional', although he saw the balance as coming 'down heavily on the defendant's side'. By these remarks he was presumably indicating, correctly in their Lordships' view, that this is very much a case on its own merits, the decision on which should not be taken as a precedent in other cases. While there was no prospect of this appeal succeeding, the fact that their Lordships are of the opinion that the appeal ought to be dismissed should not be regarded as an indication that in the ordinary way, in the absence of exceptional circumstances, the time scales of the order of those under consideration will result in prosecutions of fraud being stayed."

I have recited a very large portion of Lord Woolf's judgment as it encapsulates most of what has to be borne in mind when approaching the present application.

In The Queen v. Leung Hung and another (unreported, C.A.617/1986), Yang C.J. (Acting) put the matter with clarity and precision when he said at page 2 of the judgment:

"An abuse of process covers anything unjustifiable done deliberately or inadvertently by the prosecution which has seriously prejudiced the possibility of the accused defending himself successfully. If the Judge should find that there was no prejudice then the trial would proceed in the normal course. If the judge should decide that the defendant was prejudiced by the inordinate delay then he might, depending on the seriousness of the prejudice, exercise his discretion and order a stay of the proceedings."

It was stressed in Attorney-General's Reference (No.1 of 1990) that it is sometimes overlooked 'that the trial process itself is equipped to deal with the bulk of complaints' and I have to bear in mind that, although some prejudice might arise as the result of long delay, this is a far cry from saying that a fair trial cannot now be conducted.

There is perhaps no better illustration of how delay by itself, which has caused no prejudice to the defence, will not avail a defendant on a stay application than the example found in the case of R. v. Central Criminal Court, ex parte Randle and Pottle (1991) 92 Cr.App.R. 323 where the charges related to the escape from prison of a notorious traitor some 23 years before trial. The trial judge said (at p.326):

"The passage of these 23 years ........ is of course apparent. It is the background of the whole case. But it has to be looked at in the light, particularly, of the nature and seriousness of this particular case.

Against that background, I have had to form my own value judgment. I stress, finally, then, that justice and fairness are not one-sided. Those who sympathise with these two men who now have to face trial should bear that well in mind. I believe that the nature and seriousness of the alleged offences and all the relevant circumstances establish beyond any doubt that it is fair, right and just that this case should proceed."

After citing Deane J. in the Jago case, Watkins L.J., giving the judgment of the Divisional Court, said (at p.343):

"It was urged upon us that the average bystander looking at this problem would automatically say words to the effect that it would be scandalous to prosecute in respect of events which took place over 20 years ago; that the circumstances of the applicants have so radically changed during that time that it is not in the public interest to resurrect by way of criminal process events which are not within the memory of a large section of the population ......

(At p. 344): The judge concluded that the prosecution had not been actuated by any improper pressures or motives ......

This is, of course, an extraordinary and unique case. The delay is obviously very long indeed but not so long as to disable the vast majority of the people of this country, we think, from recalling the consternation caused by the escape of Blake and its serious implications. Some people may sympathise with the predicament of the applicants. Whether that sympathy is misplaced is not for us to say. We have to regard, as we have most carefully, the evidence, the arguments of counsel ........ and the value judgment of the judge. In our judgment he came to a conclusion which cannot be criticised in principle. Nor can it be assailed on the basis that he disregarded matters which, if taken into account, might have affected his decision. These applications are refused."

There are many English examples in recent years where offences of a sexual nature have been reported by female complainants long after the event and where, following applications to stay, judges have exercised their discretion to continue the trial. These decisions have all been upheld.

Amongst the cases cited to me in argument were: R. v. R. (1994) Crim.L.R. 948 (also the transcript in R. v. Rattigan, 17 March 1994, Court of Appeal No.93/1711/W3). In this case the crimes had occurred between about 20 years at most and 7 years at the least before the trial began and important medical and Social Service records had been destroyed.

In R. v. Dutton (1994) Crim.L.R. 910, no complaint was made until 14 years after the last alleged criminal act. This was a case in which witnesses had died or become unavailable, and potential exhibits had been lost.

The case of R. v. Birchall, unreported, (transcript 93/4356, 6 March 1995) concerned allegations of indecent assault and rapes between 1973 and 1977 when the complainant was under 16 years old. The trial in 1993 took place when the complainant was 31 years old, and depended entirely upon her uncorroborated evidence.

In this category, where sexual offences have been alleged long after the event, only two cases have been brought to my attention which have resulted in a stay. In R. v. Telford Justices, Ex parte Badhan (1991) Cr.App.R. 171 there had been a 15 year gap between the date of the alleged rape and the making of the complaint. The Divisional Court, on an application for judicial review, concluded that a fair trial was not possible and made an order prohibiting the justices from continuing with committal proceedings.

The second case was referred to as R. v. Weir in the transcript of R. v. Rattigan (above). It appears that Rougier J. stayed a trial for rape where the conduct began 18 years before the trial, and 14 years had elapsed since the commission of the last offence.

7. Factual Bases for Stay on Ground of Delay

With these principles in mind, I turn now to the more important complaints which were made on behalf of the Applicant as to the ways in which it is said that delay has occurred.

(i) Delay over the Prosecution of 'Gammon House', and 'Inactivity' between 1988 and 1991.

On 22 September 1987, following the acquittal of the Applicant and all other defendants in the 'Carrian' trial, the trial judge stated:

"I know not what the Prosecution's attitude with regard to the Gammon House charge is, but may I please say, make up your minds as quickly as possible because there is one gentleman who has had this hanging over his head for years. I say no more ...... it is nothing to do with me, it is for the Prosecution."

No announcement was made of the decision not to proceed on that count until 20 May 1988. It was made plain that the reason for offering no evidence was that the BMFL case would soon be ready to proceed, and that Gammon House might delay its commencement. It was expected at that time that Osman, who was in custody, would soon be extradited from England, and that evidence-gathering in Malaysia, essential to the BMFL trial, could soon begin.

The complaint Sir Michael Ogden Q.C. makes is that the BMFL charges should have been more or less ready for trial in 1988 once it was known that the Carrian trial, including Gammon House, was over.

There are two problems he has had to face in making this submission.

Firstly, if the evidence-gathering had been done whilst the Carrian trial was still in progress, the defence would have had serious cause for complaint, such that an objection to its admissibility under the Evidence Ordinance Cap.8 might well have been destined to succeed. Part VIII A governs the obtaining of evidence in other jurisdictions for use in criminal proceedings in Hong Kong. This is done under the terms of Section 77E by issuing a letter of request to the court or tribunal in the country where the evidence is to be taken. By the terms of Section 77F:

'...... any deposition, together with any document or thing exhibited or annexed thereto, which is received by the Registrar pursuant to a letter of request issued by him under section 77 E in respect of any criminal proceedings, shall on its production without further proof be admitted in those criminal proceedings as prima facie evidence of any fact stated in the deposition and in the document (if any) exhibited or annexed thereto if ......

(d) ...... having regard to the following matters:

(i) Whether it is reasonably practicable to secure the attendance of the deponent, taking into account for that purpose ...... the delay or expense likely to be caused in securing his attendance;

(ii) whether the deponent was cross-examined before such court or tribunal; and

(iii) any other matter which, in the circumstances, appears to the court to be relevant,

no unfairness is likely to occur in those criminal proceedings consequent upon the deposition and any other document (if any) exhibited or annexed thereto being admitted in evidence under this Section.'

At most of the hearings in Malaysia, the defence have chosen to be present with counsel or solicitors or both. They have had the opportunity to cross-examine witnesses and have frequently availed themselves of it. It is for this reason, as I said earlier, that if these hearings had denied them that opportunity they would almost certainly have succeeded, where important witnesses of fact were concerned, in having the evidence excluded at trial. It is hardly surprising that the prosecution chose to wait until the conclusion of Carrian as this, in turn, freed the Applicant's lawyers from the burden of that case.

There was a second and equally important problem faced by the Applicant, once the decision in 'Gammon House' had been made, which created a delay in 1988 in taking evidence in Malaysia. This was going to be a long and complex trial by any standards. The expense of one long trial would be enormous and the prosecution had decided at an early stage that it would be unthinkable to have two trials covering the same ground, first for this Applicant and then for Osman. It was, therefore, decided that Osman would be tried together with the Applicant. Accordingly, the evidence to be taken in Malaysia affected not only the Applicant but Osman as well. Osman, consistent with his attitude towards extradition which shows him to have laid every possible obstacle in the path of the prosecution to delay being extradited on technical and wholly unmeritorious grounds, now took technical objection to the procedures adopted for the Malaysian evidence-gathering. In this, he was joined by the Applicant.

There is a complicated history to the evidence-gathering operations, and it would be as well if I were to attempt briefly to summarise it.

In December 1985, evidence-gathering began, pursuant to 1985 letters of request, for the extradition of Osman and Shamsudin.

In May 1987 further letters of request were sent to Switzerland and United States of America.

In September 1988, the prosecution attempted to gather evidence for the first time in Malaysia for the purposes of the trial under an order dated 26 April 1988. This was a consequential order to the 1985 order that was made for the purpose of extradition.

It was at this stage that Osman, followed by the Applicant, challenged the validity of the 1988 order. The High Court ruled against them, but evidence-gathering was further delayed, despite prosecution opposition, pending appeal to the Malaysian Court of Appeal.

On 5 June 1989, Osman sought a declaration that the 1985 letter of request order was invalid. On the application of the prosecution, Osman's application was struck out in January 1990.

On 9 January 1990, Osman applied to appeal against the order to strike out. This appeal was dismissed in March 1991.

In September 1991, a third letter of request was made to the Malaysian Court, and when the order was given, examination of witnesses was fixed for March 1992. Osman continued, this time without support from the Applicant, with further legal manoeuvres to have the evidence-gathering stayed pending appeals. These were unsuccessful.

Sir Michael Ogden Q.C. has submitted that the prosecution had, by its apparent inactivity between September 1988 and the end of 1991 effectively become dormant. He has submitted that once the defence, in late 1989 and early 1990, began to object to further delay in the BMFL trial, the prosecution should have proceeded against the Applicant regardless of Osman.

Whilst it is true that objection was being taken to further adjournments, there is no doubt in my mind that the prosecution was doing everything in its power to expedite the case. Their hands were being kept occupied with extradition proceedings in London with Osman and in Paris with Rais but, until the Malaysian evidence-gathering was able to resume, nothing more could be done with preparation for the trial in Hong Kong. Furthermore, the Applicant, through his lawyers, had done nothing after September 1988 to have his appeal heard quickly. He had demonstrated by his agreement to launch this appeal, based as it was on a technicality that could only delay the inevitable, an intention that was hardly consistent with trial at the earliest opportunity. A detailed history of this aspect is to be found in the judgment of Woolf L.J. in R. v. Governor of Brixton, ex parte Osman (No.4)(1992) 1 All E.R. at p.592.

(ii) Delay Caused by Decision to Join Co-Defendants

Criticism, if not actually made, was certainly implied in the submissions for the Applicant that the prosecution was somehow at fault in deciding from the outset that Osman should be tried with the Applicant. That argument it seems to me relies heavily, if not entirely, on the benefit of hindsight. The length and complexity of the extradition proceedings in Osman's case were without precedent, rivalled only perhaps by the difficulties encountered in having Rais extradited from France. No one could have anticipated that these proceedings would last from December 1985 when Osman was first arrested until December 1992 when he was flown to Hong Kong. He was unsuccessful in ten separate applications for a writ of habeas corpus, each of which was followed by an application to the Divisional Court for leave to appeal to the House of Lords. When those applications were refused he applied, as a matter of course, to the House of Lords for leave to appeal against the Divisional Court's refusal of his applications. These applications were equally unsuccessful, as were three other complaints made to the European Commission of Human Rights.

There is no evidence to suggest that the Applicant had any influence over the course taken by Osman, and I have proceeded on the basis that these were matters wholly outside his control. I am also satisfied that the prosecution did all in their power to curtail the time being occupied by these time-consuming legal and technical manoeuvres. The same equally applies in Rais' case where he managed to avoid extradition from 27 April 1987 to 2 February 1994.

There are several grounds upon which the Respondent has submitted that the decision to have a joint trial was fully justified and Mr. Wilson Q.C. cites in argument a number of English cases which support his contention.

In Rex v. Grandkowski and Malinowski (1946) 1 K.B. 369 it was held that where a common enterprise is alleged it is obviously right and proper that they should be jointly indicted and tried.

In R. v. Andrews Weatherfoil Ltd. (1972) 56 Cr.App.R. at page 40, Eveleigh J. in giving the judgment of the Court said:

"As long as it is possible for persons concerned in a single offence to be tried separately, it is inevitable that the verdicts returned by the two juries will on occasion appear to be inconsistent with one another. Such a result may be due to differences in the evidence presented at the two trials or simply to the different views which the juries separately take of witnesses. That the result produced by such inconsistency is 'unsatisfactory' cannot be disputed ......"

This decision was followed in R. v. Lake (1977) 64 Cr.App.R. 172. Lord Widgery C.J., giving judgment said (at page 175):

"It has been accepted for a very long time in English practice that there are powerful public reasons why joint offences should be tried jointly. The importance is not merely one of saving time and money. It also affects the desirability that the same verdict and the same treatment shall be returned against all those concerned in the same offence. If joint offences were widely tried as separate offences, all sorts of inconsistencies might arise."

In my judgment, there were the most compelling reasons for requiring a joint trial of the defendants. Separate trials each lasting perhaps as long as a year could not possibly be justified where, as in this case, almost all the same evidence is common to each defendant. There were known to be problems in calling some of the Malaysian witnesses who, because they were outside the jurisdiction, were not compellable. Whilst some might have been prepared to attend a single trial, it was highly unlikely that they would have agreed to give evidence in several trials. The cost would have been prohibitive and the likelihood of inconsistent verdicts was such that this had to be avoided.

(iii) Delay caused by the West LB Trial

When the prosecution realised that there was likely to be a considerable delay in the trial of the BMFL charges, it was decided to fill the gap by proceeding on the West LB indictment. Sir Michael Ogden Q.C. has made the rather surprising suggestion that this decision made it very difficult for the Applicant's lawyers to work on West LB even though the Malaysian proceedings were in abeyance and there was no end in sight to the extradition proceedings. It has seemed to me that the decision was both sensible and proper.

The West LB chronology needs to be looked at in some detail and is also extensively referred to in George Tan Soon-gin v. Judge Cameron and Another (1993) 96 Cr.App.R. 172; (1992) 2 A.C. 205.

On 4 November 1988, the West LB charges had been adjourned for a year at the Magistracy on the basis that the BMFL trial could take priority.

On 16 June 1989, the Attorney-General's Chambers informed the defence that the West LB charges would now be restored so that they could be given priority over BMFL.

On 25 October 1989 there was a new development when it was decided that the Applicant would be charged with the Barclays (Asia) offences which would be tried with the West LB offences in the District Court.

On 2 November 1989, the Applicant applied for leave for judicial review of the Attorney-General's decision to restore the West LB charges. Leave was granted on 8 November 1989, but set aside on 4 April 1990.

On 24 April 1990, the charges were restored and the Applicant was arraigned and pleaded not guilty on 11 May 1990.

On 12 November 1990, the Applicant applied to His Honour Judge Cameron for a permanent stay of the Barclays (Asia) charges or, in the alternative, an adjournment of them, and for a temporary stay of the West LB charges, on the basis that these should be tried after the BMFL case had been concluded.

On 4 December 1990, the stay application was refused whereupon the Applicant then applied for judicial review of this decision on 22 February 1991. The application was refused by Barnett J. on 13 May 1991, a decision that was itself taken to appeal in the High Court. On 29 November 1991, the Court of Appeal dismissed the appeal against Barnett J.'s refusal, but on 17 December 1991 gave leave, on a jurisdiction issue, to appeal to the Privy Council.

On 5 February 1992, the Privy Council granted special leave to appeal against Barnett J.'s refusal and the appeal on both grounds was dismissed on 13 May 1992.

There was a further attempt to have the case stayed temporarily when application was made before His Honour Judge Moylan in the District Court between 16 and 18 June 1992. This application was refused on 24 June 1992.

The West LB case then began on 25 June 1992, and ran for about eleven days when proceedings were adjourned for the inspection of documents in the United States of America.

On 26 October 1992, the Applicant applied to the trial judge for the judge to disqualify himself from further trying the case. On 2 November 1992, the judge agreed to the application.

Six weeks later, Osman was flown to Hong Kong, and the BMFL case again took priority.

Whilst this was a complicated series of events, the question that remains to be answered is: did these events delay the trial of the BMFL charges when, for most of the time the West LB proceedings were in progress evidence-gathering in Malaysia had not been possible?

The answer, it seems to me, cannot be more straightforward. There has been no additional delay to the BMFL case that I can discern and nothing drawn to my attention on behalf of the Applicant has persuaded me to take a contrary view. Very sensibly, Clifford Chance, the solicitors in both cases, had instructed different counsel to prosecute them. The two counsel instructed for the prosecution of BMFL until about December 1994 were Mr. Clive Nicholls Q.C. leading Mr. Graham Grant, whereas the West LB case was being handled by Mr. Graham Harris.

(iv) Delay Caused by Conduct of the Prosecution

On behalf of the Applicant it has also been submitted that, in a number of less important ways to those I have touched upon already, a variety of steps taken by those conducting the prosecution of the BMFL case have led to some delay when taken individually, but to considerable delay when taken in combination.

I do not feel it necessary to dwell on any of these features at great length as most of the points raised are relatively minor in the context of delay as a whole. Indeed, in his reply to this aspect, Mr. Wilson Q.C. drew attention to the inordinate lengths to which the affidavit prepared by the Applicant's solicitor, Miss Skowronska, had gone in dealing with a lot of trivial and often irrelevant topics in the context of a stay application. He commented with some force that valuable time had been lost by the preparation of these affidavits in themselves, and that the Respondent's reply had also required a proportionately longer time in order to expose, for what they were worth, the flaws, the trivia and the irrelevances to be found in so many of the Applicant's arguments. I shall return to this topic in due course when I deal with a chronology of events since 1993 which must inevitably take account of the time occupied by the preparation of affidavits.

I said on several occasions during the course of the submissions that I found Miss Skowronska's affidavits extremely useful in providing an overall background to a case of some complexity, but I have found myself in full agreement with Mr. Wilson Q.C. that large sections of those affidavits, which must have been time-consuming to prepare, are irrelevant to this application. Drawing on just one example out of many, the so-called 'Clifford Allison' documents are covered by a section in Miss Skowronska's first affidavit which occupies 98 pages when a paragraph would have been more than sufficient. The delay involved over these documents was minute and the prejudice to the Applicant was nil.

As a result of reaching this conclusion, I shall touch briefly upon only some of the criticisms and complaints which are made about the prosecution's handling of this case which are said to have led to delay.

(a) Failure of witnesses to attend Malaysian hearings and other lost time in Malaysian court

From time to time witnesses unexpectedly failed to attend the Malaysian court hearings. These had been booked well in advance, and this meant a number of days were lost because no substitute witness could be found in time. On at least one occasion the High Court judge himself fell ill and a week was lost. There were also wasted hours and perhaps days when Mr. Graham Grant found it necessary to take instructions over what are claimed on behalf of this Applicant to have been minor points about which Mr. Grant was quite capable, under the terms of the Farquharson Committee Report (See Archbold paragraph 4-72) of making a decision himself. I found this last suggestion a little surprising as it seemed to be in direct contradiction of the suggestion, in the written submissions, that Clifford Chance failed to consult as often as they should have done with counsel who they had instructed. In any event, little time was lost and no prejudice resulted.

(b) The Failure of the Prosecution to provide daily and/or accurate transcripts

It was unfortunately not possible for the Malaysian court reporters to provide a speedy transcript service. A long wait for transcripts was experienced after the hearings in March 1992. The prosecution then retained a firm of Hong Kong court reporters. However, the Malaysian court would not give permission for them to be sworn as the official reporters for the October 1992 hearings with the result that they were neither permitted to use tape recorders nor to sit at the front of the court. This led to inaccurate, unofficial transcripts being provided to the defence. Time was then to some extent wasted while the official transcript was awaited, in trying to agree amendments. The matter was eventually sorted out to the satisfaction of both sides when the Malaysian court permitted Verbatim Reporters to act as the official reporters. They did so from February 1993 onwards.

So far as I can determine, only one contentious witness, Abdul Rashid Hussain, was called during the March and October 1992 court sessions. If there was any prejudice to the defence arising from slow or inaccurate transcripts, this was cured when that witness was recalled for cross-examination in December 1993.

(c) Prosecuting counsel's policy of asking leading questions and reading affidavits in the Malaysian hearings

Whilst I am told by Sir Michael Ogden Q.C. that the submissions which are set out in the Applicant's skeleton argument are maintained in their entirety, I am quite clear that this is a topic that is only relevant to the admissibility and weight of the evidence obtained in response to the question. It has no place whatever in a stay application unless I am being invited to take account of the lost minutes taken up in the Malaysian court with objections from the defence, as a contributory factor in delay. If so, it is an immaterial and trivial consideration which serves only to detract from the main arguments.

(d) The failure of the prosecution to take and serve statements on the defence in good time

Under the terms of Section 13(1) of the Complex Commercial Crimes Ordinance Cap. 394 the prosecution can be ordered by the judge to serve, amongst other documents, the copies of witness statements and exhibits after the accused, under Section 12, has been given an opportunity of pleading to the indictment at the commencement of a preparatory hearing. By the terms of Section 11, if a judge orders a preparatory hearing to be held, the trial commences with that hearing.

The nature of the complaint can be put very simply. It has been submitted that, by relying on Section 13 of the Complex and Commercial Crimes Ordinance, the prosecution has used this as an excuse not to serve statements in its possession earlier than was strictly required after the first preparatory hearing on 28 February 1994. In reality, it is argued, this trial had commenced long before the preparatory hearing, with the Malaysian evidence-gathering hearings. It is further submitted that it was unfair to expect the defence to cross-examine witnesses in Malaysia without advance notice of all the statements in the case. This led to adjournments being requested and, when granted, this contributed to the delay.

The Respondent has accepted that there were delays, albeit justified, in the production to the defence of some of the Malaysian witness statements.

In my judgment, it is abundantly clear that while some short delays occurred, no prejudice has resulted. Sir Michael Ogden Q.C. was forced to concede, using one of his inimitable expressions, that "in the end it did not matter a button", and he agreed that the defence had often been given generous time in which to prepare its cross-examination.

(e) The failure of the prosecution to serve exhibits on the defence in good time and, in some instances, the service of illegible copies.

This complaint is in similar terms to the late service of statements. Naturally when poor copies were received from the prosecution, this led to some irritation on the part of the defence, but the problem was easily cured and no prejudice flowed from it. Perhaps the situation was exacerbated by a feeling on the part of Miss Skowronska, expressed in her letter dated 30 January 1991 in Exhibit MAMS/50 at page 2, 167, that it appeared to her that co-operation between the two sides had ceased.

It is only fair to point out that Clifford Chance appear to have been attempting to carry out a very difficult task in a manner which was designed to assist the defence as well as to cover themselves in the face of ever-increasing written demands from Miss Skowronska that at times must have seemed to be descending like confetti upon them.

I should also say at this stage that, while it is accepted that some statements and exhibits relating to Malaysian witnesses were late in being served, the vast majority of relevant documentation, comprising about 30,000 pages, had been in the Applicant's hands since the time when the Osman extradition files were loaned to the defence for the purposes of photocopying in 1988.

(f) The failure of the prosecution to disclose unused material in good time

The prosecution has accepted that unused material was not disclosed as quickly as they would have liked. In the light of their explanations, to which I shall turn in a moment, Sir Michael Ogden Q.C., who has accepted that at no stage and in no respect whatsoever throughout the entire development of the BMFL case is there any suggestion of impropriety by prosecuting counsel or solicitors, conceded that his point is limited to a complaint that the defence was temporarily hampered, as the result of which some delay was caused. It seems to follow that there has been no prejudice.

Having considered the reasons for late disclosure of unused material, I am satisfied that the prosecution had ample justification for the course they adopted despite what was said on 7 September 1993 by London's ex-chief Metropolitan Magistrate, Sir David Hopkin, sitting as Acting Stipendiary Magistrate at Bow Street for the purpose of evidence-gathering from witnesses in the United Kingdom (See page 7, 601 attached to Miss Skowronska's first affidavit):

"From what Sir Michael says, it seems as though cards are being held so close to the chest that neither the defence nor anybody knows what is going to be brought out."

The most cogent reason for the delayed disclosure of unused material related to the prosecution's understandable fear that whenever new material was served on the Applicant and Osman, the latter would use it to fuel another application in London for a writ of habeas corpus under Section 14(2) of the Administration of Justice Act 1960, which reads:

'Notwithstanding anything in any enactment or rule of law, where a criminal or civil application for habeas corpus has been made by or in respect of any person, no such application shall again be made by or in respect of that person on the same grounds, whether to the same court or judge or to any other court or judge, unless fresh evidence is adduced in support of the application; ......'

Woolf L.J., in the course of his judgment in R. v. Governor of Brixton Prison and another ex parte Osman (No.4) (1992) 1 All E.R. at page 594g said:

"There is no doubt it is deeply disturbing that after this period of time, after Mr. Osman has been in custody in prison in this country for far too long, it should still be uncertain whether he is to be returned to Hong Kong. However, when you look at the history as I have sought to outline it ...... it appears clear to me that this is a situation that Mr. Osman has brought upon himself by his own actions, as the result of a deliberate course of conduct upon which he has embarked designed to use the machinery of this court and other courts as a way of preventing his return to Hong Kong.

It appears to me that this is a situation where he has embarked upon a war of attrition designed to wear down the Hong Kong government so as to prevent his return. I have no doubt whatsoever that when the present application is considered in the context of previous applications it is indeed an abuse of process of the Court. It is using the machinery of the court for purposes for which it should not be used."

This application was struck out as an abuse of process.

Quite apart from Osman's use of material served on his solicitors, Boase and Cohen, to mount new challenges to the extradition order that was being sought against him, it is also apparent that information which was divulged in the Magistracy on 4 December 1990 by Mr. Nicholls Q.C. to those representing the Applicant was communicated to Osman's solicitors. They then used this to challenge the evidence-gathering exercise due to take place in the United States of America.

There was a second, and perhaps self-evident reason why disclosure was sometimes very slow. The sheer size of the case papers has made the sifting of material a time-consuming exercise. There was a duty on the prosecution to ensure that nothing was disclosed that breached confidentiality, that was either against the public interest or which offended Malaysian banking secrecy laws.

(g) The failure of the prosecution to notify the defence at an early stage upon which charges they proposed to proceed

The applicant was charged with 23 offences on 7 December 1985, and it has been submitted that some delay has been occasioned by the prosecution's refusal to specify exactly which of those charges would be proceeded with at trial. I accept that this may have led to preparation, including the taking of instructions, on issues which are no longer relevant to this indictment but it was not until Osman was extradited that it was possible to select which charges would be included in the final indictment. In any event, there is not the slightest prejudice to the Applicant and the delay will have been minimal.

(v) Delay caused by the application to stay the BMFL charges

In order to understand the time occupied by matters relevant to the present application I need briefly to relate some of the events which have occurred since 24 August 1993, when Sir Michael Ogden Q.C. first put on formal record that a stay application would be made.

On 29 November 1993 the case was transferred to the High Court. I digress to say that the lateness of this transfer is itself criticised as a cause of delay by virtue of having deprived the case of a judge's personal management, which is only possible after transfer. I can see no merit in that argument. Having regard to the ways in which, as I have already illustrated, this case was being held up, no amount of case-management would have expedited matters.

At the first preparatory hearing the defence provided what turned out to be optimistic forecasts as to when the stay application arguments and supporting documents would be ready. Eventually, after extensions of time had been requested and granted, and after some draft sections had been forwarded to the prosecution, the first affidavit prepared by Miss Skowronska, and contained in 35 box files was served at the end of December 1994. This documentation had taken almost all the year to prepare and in view of its quite remarkable length and detail, it was to take Mr. Roger Best of Clifford Chance almost seven months to prepare a concise affidavit in reply. Miss Skowronska then responded with a second affidavit and related exhibits which were presented in a further 10 box files.

With the exception of a few weeks in 1994 when evidence was taken in Malaysia during February, May, July and October little has been accomplished in the past two years whilst Miss Skowronska's affidavits were being prepared or being considered by the other side. Now that they have been analysed, I am driven to the view, in full agreement with Mr. Wilson Q.C.'s submission, that these could have been reduced to a small fraction of their size. They make interesting reading no doubt, but much time has been needlessly wasted while so many irrelevancies were being carefully documented by Miss Skowronska.

(vi) Conclusions

I have attempted to cover most of the salient points which have been made on behalf of the Applicant in respect of delay, but for the reasons I have given already, in my judgment there has been a material contribution to that delay by the Applicant through the actions taken by his lawyers since 1988.

This conclusion, which I have reached after careful consideration of the arguments, is in my judgment fatal to this aspect of the application.

(vii) Prejudice from Delay

Nevertheless, as it has been submitted that the prejudice which flows from the delay is so serious that a fair trial cannot now take place, I have had to analyse the nature of the prejudice as a separate consideration. The ways in which Sir Michael Ogden Q.C. has presented his arguments on this topic are really threefold.

Firstly, he submits that memories of the material events covered by the indictment will have faded to such an extent that it is unrealistic to expect the evidence to amount to more than the vague recollections of witnesses. It follows that the witnesses must now be regarded as unreliable.

In this context I have had regard not only to the submissions that have been made in court but also to the ways in which the prosecution and defence have set out their cases under Sections 13(1) and 16 of the Complex Commercial Crimes Ordinance respectively.

It is immediately apparent that the bulk of the evidence is uncontentious which will either need to be read to a jury or agreed. There is, however, an important area of the evidence covered by a relatively small number of witnesses where credibility is paramount. The essence of the defence case appears to be that a secret agreement existed between the Applicant on the one hand and high-ranking Malaysian Government and banking officials on the other as to the particular way in which business transactions were conducted. If fraud was involved, this was not something about which the Applicant was aware and, following the Carrian collapse in 1983, he was effectively made a scapegoat by others who were seeking to avoid the blame.

The nature of this defence is straightforward and the Applicant and many of the witnesses have been on notice of the allegations for a long time. It is difficult to see that any serious prejudice has resulted although a strong direction that a jury should be on its guard against the possibility of mistaken memories would clearly be necessary.

In the second limb of his submissions as to prejudice arising from delay, Sir Michael Ogden Q.C. has pointed out that there are still numerous documents which are missing from files seized during the investigation. He submitted that these may have thrown important light on the defence case.

I have concluded that this is a submission without substance as it is far more likely that the prosecution would be prejudiced by missing documents than the defence who, unlike the prosecution, can comment in any way they choose as to their disappearance. More importantly, however, these documents do not appear to be missing on account of delay. Poor filing systems may well explain why some items are missing and it is a feature of the case that as time has marched on, more and more of the missing documentation has come to light. I have also borne in mind that if the Applicant entered into secret agreements, it is highly unlikely that any documents would reveal this since their existence would destroy the purpose behind the secrecy.

Thirdly, it has been submitted that potential witnesses who might have been available to destroy aspects of the prosecution's case may have disappeared.

Again, this is an argument without substance. No missing witness has been identified and the Applicant has had ample time in which to research his defence.

Before leaving the subject of prejudice in this context, it has not been suggested that the delay has had any prejudicial effect on the Applicant's health. Whilst I must deal in detail with the topic of health later, it suffices that I say at this stage that the Applicant's cardiologist, Dr. Gibson, specifically stated that it had not done so. This was a considered answer following a short adjournment I granted to Sir Michael Ogden Q.C. for the purpose of ensuring that no point on this important topic had been missed.

It is convenient at this stage to deal also with a wholly separate ground of prejudice that has been put forward on the Applicant's behalf, although it has little to do with delay as such.

In a somewhat bold submission, Sir Michael Ogden Q.C. has argued that the very fact of taking evidence from witnesses in Malaysia, particularly where that evidence was in dispute is, by itself, so unfair that it would be an abuse of the process of the Court to permit the trial to proceed.

The argument, which was developed at some length, was that if a jury was empanelled they would be faced with the impossible task of absorbing evidence that is likely to take twelve weeks to read to them. In addition, the jury would not have the benefit of a video recording which might enable them to judge the witnesses' reactions to questions in cross-examination. It has been submitted that in the result the case has become 'untriable' because it is wholly artificial to expect a jury to decide the case based upon evidence, some of it disputed, that has been read to them over such a lengthy period.

I do not need to dwell on this submission. Of course, where evidence has been taken overseas and is then read to the jury who try the case, it is a different way of proceeding to the long-established practice of calling disputed evidence before the jury which they can see as well as hear. This may possibly raise a matter which goes to the admissibility of the evidence and to the weight to be attached to it but, in my judgment, it has no place in an application to stay proceedings. The Court has been given a power under the terms of section 77(F)(1)(d) of the Evidence Ordinance Cap.8 to refuse to admit evidence if it is satisfied that unfairness is likely to occur. I am in full agreement with Mr. Wilson Q.C. who has submitted in reply that the Applicant's contention is tantamount to saying that the statutory 'letter of request' procedure is unavailable and without effect in respect of witnesses whose evidence is disputed. Clearly this cannot be the situation and there is no authority for the Applicant's proposition.

A parallel argument was advanced in R. v. Oscar Lai Ka-to (Cr.App. 229/92) where an application was made to the trial judge to stay the proceedings as an abuse of process or, alternatively, to exclude the evidence of Warwick Reid. If the application had succeeded, the prosecution would have had no evidence to support their case. Power V.-P., giving the judgment of the Court on 10 May 1994 (at page 12) said:

"The foundation of both submissions was that Reid was such a tainted witness that either his evidence should be excluded from the outset or that the proceedings based upon it should not be allowed."

At page 17, he went on to say:

"We hold without hesitation that ...... (the judge's) ruling not to stay the case for abuse of process was correct not only at the time ........ but also in the light of later authority.

Turning to the application to exclude Reid's evidence at the outset.

There can be no doubt that a judge's discretion to make orders necessary to a fair trial may extend to the power to exclude evidence or a witness before the trial begins even though such an order is outside the experience of counsel in the case. We add that it is also outside the experience of any member of this court. This serves to indicate that such orders are likely to be extremely rare. Indeed, we find it difficult to envisage the circumstances which would warrant its making. Without hesitation we conclude that the circumstances in this case did not warrant the exclusion of Reid's evidence before the trial began."

Mr. Wilson Q.C. has made the point that if it is wrong to prevent a trial from proceeding when the principal and essential prosecution witness was corrupt, and only giving evidence in the expectation of a reduction in his sentence if he came up to proof, then there is even less justification in doing so when the testimony of apparently respectable witnesses is tendered under statutory provision. Again, I agree with him.

It follows from these conclusions that, even if I had found that none of the delay had been the responsibility of the Applicant, I have been unable to discover any real prejudice caused to him by the delay. Accordingly, it would be wrong to order a stay on this ground.

8. Pre-trial Publicity

I turn now to the submissions made on behalf of the Applicant that no fair trial can now take place as the result of pre-trial publicity already given to the case.

The 'Carrian' and 'BMFL' charges amongst others have brought the Applicant a high degree of notoriety in Hong Kong not least because of the length of time these proceedings have been pending. However, Hong Kong is a free society and the media have every right to report on matters which are of public interest and concern, subject always to limitations that are clearly defined. Well-known personalities who face criminal allegations, or unknown criminals whose alleged crimes are particularly grave, inevitably receive greater coverage than those who are less known or whose crimes are less serious. It would be a preposterous contention that the more notorious the criminal, the greater the reason, following massive coverage in the media, not to have a trial. In looking for guidance as to how the courts have dealt with this situation in the past, it is inevitable that other cases of a notorious kind are considered. There is no better example to turn to than the approach adopted by Lawton J. at the commencement of the second Kray trial. See Ronald Kray & Others. [1969] 53 Cr.App.R. 412. Kray had been convicted on an earlier indictment of murder which had been extensively reported in the press. Lawton J. (at p.414) 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. A number of newspapers commented on the evidence in the earlier trial. I can see nothing wrong in that, provided the comment was fair."

That case was an extreme one by any standards. The earlier Kray trial had resulted in a murder conviction only shortly before the second trial was due to begin.

Taking such limited authority as there is, the courts in England have inclined to the view that a fair trial in some very extreme cases may not be possible where gravely prejudicial publicity on a massive scale comes either immediately before or during the trial itself.

In this context I have considered R. v. McCann and others (1991) 92 Cr.App.R. 239 and R. v. Taylor and Taylor (1994) 98 Cr.App.R. 361. These were not stay applications, but the principles applicable to each case are very similar.

The McCann case was concerned with allegations of terrorism where the defendants had maintained their right to silence. At the stage of final speeches, the Home Secretary announced the Government's intention to change the right to silence. This was followed by considerable publicity including several broadcasts in which it was explained how the current rules favoured terrorists. The Court of Appeal quashed the convictions on the ground that the trial judge should have discharged the jury and ordered a retrial.

In the Taylor case, the publicity concerning the trial was described as 'unremitting, extensive, sensational, inaccurate and misleading'. The murder convictions were quashed for that reason, and one other reason also, but no order was made for a re-trial on the ground that it was felt that a fair trial could no longer take place.

There are two English decisions, both at first instance, which are the only examples brought to my attention where cases have been stayed on the ground that the prejudice created by pre-trial publicity was so great that no fair trial could take place. In R. v. Knights (unreported) at Harrow Crown Court on 3 October 1995 H.H. Judge Sanders found that what strongly emerged from the documents he had seen was that certain reporters were:

"determined to run a hate campaign against Knights unchecked by their editors and without any regard to the interests of justice ........ I have absolutely no doubt that the mass of media publicity in this case was unfair, outrageous and oppressive. I agree ........ that it can be described as malicious. I also believe that there are grounds for instituting proceedings for contempt of court against the editors concerned and that there is an urgent need to investigate the possibility that certain journalists have colluded with and suborned prosecution witnesses".

The second case, which is also unreported, was R. v. Reade, Morris and Woodwiss where Garland J., at the Central Criminal Court, granted an application on 15 October 1993 to stay proceedings brought against police officers who were accused of fabricating evidence against six men, known as the 'Birmingham Six', who, before their appeals were allowed, had been tried and convicted of a terrorist bombing campaign. The learned judge found that the continual stream of publicity against the police officers who were to be tried had been on such a level that "it was impossible adequately to convey by description the volume, intensity and continuing coverage". In addition to the general coverage, some of the publicity was aimed at the defendants personally which added to the prejudice they had suffered. There were, however, other factors that also contributed to the decision to stay. These can be summarised as witness and evidential problems that put the defendants at a substantial disadvantage.

Another case in which the effects of publicity were considered came in the wake of the successful appeals in England of the so-called 'Guildford Four' who had been convicted of terrorist murders. A number of police officers from the squad who had investigated the case were charged with conspiracy to pervert the course of justice and, following an application for a stay of proceedings, where there had been a lapse of eighteen years before charges were brought, Neil L.J. in the Divisional Court in R. v. Bow Street Metropolitan Stipendiary Magistrate, Ex parte D.P.P. (1992) 95 Cr.App.R. 9 said:

(at page 14) "The freeing of the Guildford Four and the comments made by the Court of Appeal attracted immediate and widespread publicity. We have seen, as did the magistrate, copies of the press reports. We have also been provided with video recordings of television programmes and television news reports ..... It is right to say that much of the contemporary publicity was sensational, critical of the police and in some cases really hostile to the police. The comments that the respondents were liars provided headline news ...."

(at page 18) "In my judgment a clear distinction can be drawn between the publicity in the period immediately after the release of the Guildford Four (October 1989) and the reports and broadcasts after December 1989. The earlier material could have been prejudicial to a trial in, say, the first part of 1990. The later material, on the other hand, could not be regarded as prejudicial in a relevant sense. Even in relation to the earlier material, however, I am quite satisfied that none of the publicity which I have seen could affect a fair trial in, at the earliest, Autumn of 1992. A jury would be perfectly capable of deciding the case on the evidence without regard to what they might have seen or read three years or so before."

In the event, a trial took place at the Central Criminal Court where all the defendants were acquitted. This does not necessarily imply that the trial was fair because, using the example of R. v. Central Criminal Court, Ex parte Randle and Pottle, it is not unknown for juries to acquit where they can sense unfairness even though all the evidence supports a guilty verdict.

Whilst these cases apply to situations that have arisen in England, the principles apply equally to Hong Kong. Mr. Wilson Q.C. has drawn my attention to the situation that arose in this building recently in the case which came to be known as the 'Stock Exchange' trial. While it was in progress, publicity which was highly prejudicial to the defendants was emanating from the case reports of the so-called 'Warwick Reid' trial which was taking place in an adjoining court. Counsel for the defence and for the prosecution in the 'Stock Exchange' case, not unnaturally, sought to have an order made which would postpone publicity, and they were heard by the 'Warwick Reid' trial judge in chambers. The application was unsuccessful, a fact that was itself given publicity. Despite all the prejudice from publicity during that trial, the judge's careful directions to the 'Stock Exchange' jury on their approach to extraneous material were obviously adhered to as, in the event, every defendant was acquitted.

The submission put forward by the Respondent on this aspect is that the correct principles to be applied are set out in R. v. Glennon [1992] 173 C.L.R. 592. Brennan J. in the High Court of Australia said (at p. 613):

"From these formulations it appears that some degree of risk, albeit not a substantial risk, to the integrity of the administration of criminal justice is accepted as the price which has to be paid to allow a degree of freedom of public expression when it is exercised in relation to a crime that is a topic of public interest. Clearly enough, though the fairness of a criminal trial may be at some risk in such a case, the trial proceeds. If a punishable contempt occurs, ex hypothesis there is a real risk of prejudice - perhaps, to adopt the formulation of Mason C.J., a substantial risk of serious interference with a fair trial. But it does not follow that, where a punishable contempt of court has been committed, the trial must be aborted .... Administration of the criminal law cannot be made hostage to conduct amounting to contempt of court, even if the contempt be flagrant. If it were otherwise, the perpetrators of crimes which shock the public conscience .... would oftentimes go untried and unpunished for pre-trial publicity prejudicial to an accused is stimulated by the notoriety of the accused and the heinousness of the crime. Yet it would undermine the criminal law's protection of society and its members to refuse to allow the law to take its ordinary course in these cases ..... No community governed by law could acknowledge that persons outside the control of the state could possess such a capacity for disrupting the administration of criminal justice."

Mr. Michael Lunn Q.C. guided me, in the course of his attractively presented submissions, through a small selection of the much larger number of newspaper articles and other media reports in the exhibit bundles. With a few exceptions of no great consequence, the exercise illustrated that the press had acted with proper restraint in what they reported, confining such articles as they published to what had occurred. There is almost no comment, as distinct from factual report, that would be likely to prejudice a jury. Most of the extracts related to long ago, and represented balanced and reasonable reports.

The arguments advanced seem also to have overlooked one aspect of considerable importance. I have been told that it is the Applicant's defence to these charges that he was unaware of the fraudulent activities of those who have pleaded guilty. Much of the more recent publicity has concerned other figures who have pleaded guilty and, whether a jury was informed of this during a trial of the Applicant or remembered it from media reports, it does not appear to prejudice his case. If it is part of the defence case to blame others for the fraudulent activities that occurred, it will not be difficult for this Applicant to find candidates at whom to point the finger, as the shadow of guilt has already fallen upon them.

As to the general publicity given to this and to associated cases in recent times, I have not read anything of any importance that was unfair or scurrilous. Much of the most recent publicity has, in any event, been aimed at the high level of fees being paid to counsel who were previously instructed to prosecute. These reports include information which was provided to the Legco Panel on Administration of Justice and Legal Services relating to 'briefing out' by the Attorney General's Chambers. There is in my mind the possibility that the prosecution will have been more harmed by these reports than the defence.

More importantly, the main prejudicial material came during the period covered by 1983 to 1988. I can see no reason why, with careful and forceful directions, a jury should not be able to put aside any preconceived ideas about this Applicant.

In similar fashion the recently completed 'Maxwell' fraud case in England will have encountered similar problems, as the Rosemary West murder trial will also have done. In the former there were acquittals and in the latter convictions were recorded, but in both there was massive publicity prior to trial.

Therefore, whilst news of the case has been spread over the thirteen years of its development, I have reached the conclusion that such publicity as there has been may have created some prejudice but I was not persuaded that this formed a ground of sufficient weight to stay these proceedings. Indeed, in many respects the Applicant is better off with the delay that has taken place than he would have been if this trial had started soon after the 'Carrian' trial ended.

9. Health

(i) Basis of Application

I turn now to the final ground upon which a stay of these proceedings has been applied for, namely the present state of the Applicant's health.

The main contention is based upon the heart condition from which the Applicant suffers. It has been submitted that a long trial, with all the accompanying stresses, will heighten the risk of a further stroke or heart attack. The logical extension of that argument is that it would be unfair to permit the trial to proceed now that the Applicant has been reduced to a relatively feeble physical condition. He would be less able to defend himself properly or to cope with the rigours of the trial. In particular, the potentially stressful nature of cross-examination, if he should have to give evidence on his own account, might even lead to his death.

The Respondent has conceded that the consequences of the stroke and the heart attack suffered by the Applicant in the past are serious factors to be taken into account when considering his well-being at court. However, Mr. Wilson Q.C. has submitted that this condition is not so grave that it would be impossible to hold a fair trial, and he has argued that the proposition that proceedings should be permanently stayed because of the physical condition of the accused is one that has no binding authority in Hong Kong or English law.

There is, however, some support for the proposition made on behalf of the Applicant which is to be found in Archbold, paragraph 4-48b, which reads:

'There is undoubtedly a power (rarely exercised) to stay proceedings in circumstances other than ...... [motion to quash, plea in bar, nolle prosequi, lack of jurisdiction] ...... and other than those which might justify an abuse of process application ...... to regulate the efficient and fair disposal of criminal cases.

It is a power occasionally used where a defendant is too ill to be tried (or for his trial to continue): the prosecution may have been unwilling to offer no evidence, or the defendant may have been too ill to attend court to be arraigned ...... and the defence may have been unwilling to apply for a nolle prosequi, or the Attorney-General may have refused their request.'

It is to be noted, however, that no authority or example is cited by the learned editors for their general proposition, and Blackstone's Criminal Practice (see paragraph D.8.41) does not support a suggestion that there is a power to stay on the ground of the ill-health of a defendant.

In the English case of R. v. Grob and Hart (unreported) His Honour Judge Denison Q.C. at pages 18/19 of the transcript dated 15 January 1990 put it this way:

".... Mr. Grob's health both physical and mental is not good. His mental deterioration is a result of the trial he has already undergone. I have already ruled that the state of his health is not by itself a sufficient reason for him to avoid standing trial again. However, it must be a relevant consideration in deciding whether the trial would be a fair trial.

There are two aspects to this. One, the danger of further deterioration in his health as the trial goes on, which might mean ...... that he could not give evidence. If that were to happen the whole trial would be aborted ...... Second, the fact that Grob's deteriorating health might inhibit cross-examination of him by his co-defendant Hart, because plainly there are issues between them."

In reaching his final value-judgment, the learned judge stayed the proceedings on the ground that the delay before trial had so prejudiced the defendants that it would not be possible for the unfairness to be corrected as it stemmed largely from the unavailability of material witnesses. This consideration was compounded by the risk to Grob of physical and mental breakdown.

The health of a defendant has been taken into account in two stay applications in recent years in Hong Kong. In R. v. Cheung Wai-bun (1993) 1 H.K.C.L.R. 189, where the stress caused by delay had probably caused a bleeding duodenal ulcer and there was disputed evidence as to the onset of irreversible dementia, Duffy J. said (at page 211):

"...... All in all I have no doubt that the very long period of waiting for his trial has seriously prejudiced the defendant's general health.

That finding by itself would not of course have justified a stay of these proceedings, indeed no single factor could do so."

In R. v. Deacon Chiu and Another (1993) 2 H.K.C.L.R. 21, Leonard J. (at page 69) said:

"The prejudice to (Deacon Chiu) was far greater because during the long delay he had suffered a serious deterioration in the general level of his intellectual function and a very serious deterioration in his memory function. The condition from which he suffered was progressive and would have continued during the trial. This must have had a gravely adverse effect ...... on his ability to make full answer and defence."

The prosecution had deliberately chosen to delay the arrests of Deacon Chiu and his co-defendant. In the case of the former, this had created a delay of about 2 years and 9 months between the events which were the subject of the charges and his realisation that he might have to give an explanation for them. There was a slightly longer delay for the second defendant whose application for a stay on the ground of prejudice caused by delay was refused. The first defendant's application was granted. The state of his mental health was the only distinguishing feature.

(ii) Physical Condition

The Applicant was born on 10 December 1938. The first sign of poor health that he encountered was in 1982 when Dr. Levi Lee, who was the Applicant's general medical practitioner, and has been his doctor ever since, found that he was suffering from hypertension.

In 1988, the Applicant began to experience chest pains for the first time. In April 1989, an electrocardiogram appeared to show that the Applicant had suffered a heart attack in the past. In order to clarify this diagnosis a coronary arteriogram (also known as an angiogram) was performed in May 1989. This showed that coronary artery disease had significantly affected the left ventricle, the main pumping chamber of the heart.

It is well known that a heart attack can occur without the knowledge of the patient. This appears to have happened to the Applicant, and I entirely accept the expert opinion of both sides that there is no doubt of this.

As a result of the heart attack, it was decided that the Applicant should undergo percutaneous transluminal coronary angioplasty ('balloon treatment'). The operation was carried out in September 1989. Its purpose was to 'balloon' three high grade obstructive lesions of the left coronary artery. After the operation, angiograms showed a significant reduction in the size of the obstructions. However, despite this, the Applicant did not feel free of chest pains (angina). Various tests demonstrated that his exercise tolerance was very greatly reduced.

A further feature of the Applicant's medical history following the heart attack was that on isolated occasions he experienced loss of consciousness. These episodes were associated with falls in blood pressure (hypotensive collapse or syncope). In June 1991, there was a particularly severe black-out. A similar event occurred on 31 December 1992 when, by way of complication, the Applicant suffered a stroke to his right side.

With this general background to the Applicant's recent poor health, it is not surprising that there is agreement amongst the experts from both sides that he is physically unfit and suffering from a serious and irreversible heart condition.

There is also a consensus of opinion, in stark contrast to the situation in R. v. Cheung Wai-bun, that the stress caused by delay is not what has led to the Applicant's health problem. His heart condition is most probably caused by a combination of prolonged hypertension and heavy smoking.

In order to understand the precise extent to which the Applicant is suffering at the present time from his condition, I have heard from five eminent experts. Called on behalf of the Applicant were Dr. Derek Gibson, consultant cardiologist at the Royal Brompton Hospital in London and Dr. K.J. Zilkha, senior consultant neurologist at King's College Hospital and at National Hospital for Neurology and Neurosurgery in London. The Respondent called Professor John Camm who is professor of cardiology and Chairman of Medicine at The Medical School, St. George's Hospital, London; Dr. John Watson, senior lecturer in medicine at Sydney University and consultant neurologist at the Institute of Clinical Neuroscience, Prince Alfred Hospital, Sydney; and Professor J. Hubert Lacey, consultant psychiatrist and Head of the Department of General Psychiatry at St. George's Hospital Medical School.

In addition to the oral evidence of these five witnesses, I was supplied with the written reports each of them has made about the Applicant. Dr. Levi Lee was also called to supplement the medical reports he had prepared.

On behalf of the Applicant and based on the evidence provided, it is submitted that exercise tolerance tests in the three years between the stroke and January 1996 when he was last examined by experts, together with subjective reports given by the Applicant himself, reveal such a serious extent to his heart disease that it would be unfair to allow his trial to proceed.

Dr. Gibson's opinion was that a long trial would pose a considerable risk of sudden death. He referred in his original report dated 16 April 1994, which was based on a meeting with the Applicant in November 1993, to the progressive deterioration in exercise tolerance, to X-rays showing the heart to be considerably enlarged and electrocardiogram readings which showed extensive old myocardial infarction (heart attack) and to a disturbance of conduction. He further testified that the Applicant's condition at that time had progressed rapidly over the past few years and that his condition remained precarious. So serious was the condition that Dr. Gibson was then predicting that it was likely that Mr. Tan would be house and chair-bound within six to nine months and he was able to say "with some confidence" that his chance of surviving one year was between 40 and 50%.

Professor John Camm reported on 30 October 1994 that it was certain that the Applicant's condition would worsen. He could not provide an accurate prognosis because Mr. Tan had already "defied the odds in having survived despite such an extensive infarction and depressed left ventricular function". He reported at the same time that the Applicant was receiving "the optimal medical therapy for his cardiac condition. No additional therapy will obviously improve his clinical status ..... Only cardiac transplantation (or possibly cardiomyoplasty) would offer much possibility of substantial improvement".

In a further report dated 11 June 1995, Professor Camm makes it clear that while progressive deterioration can usually be expected to occur, the rate at which it will do so is variable. The rate of deterioration judged by a comparison of angiograms between 19 April 1989 and 8 May 1991 was initially rapid but since the stroke on 31 December 1992, there has been no major crisis.

It seems clear that the principal reason why the Applicant's serious heart condition has slowed its progress so dramatically since the end of 1993 is the sound advice given by Dr. Gibson that he should take an ACE inhibitor, Enalapril, in place of the beta blocking drug, celiprolol, that he was previously taking. Enalapril has reduced the severity of the symptoms although the underlying heart condition remains unaltered.

The most dramatic change to take place by the time the Applicant was seen again just before this hearing began in January 1996, was that all symptoms of orthopnoea (or postural breathlessness), often associated with being unable to lie flat for any period of time, had gone. In addition, in four routine but important tests conducted by Dr. Gibson the results were normal to the extent that there was no significant change since 1993. This is not to say the Applicant is getting better. On the other hand it does indicate that he is not getting any worse as there is no real evidence of any recent deterioration in his condition.

Despite these positive signs there is still evidence before me of "bronchospasm" (wheezing) which resulted from a recent test to measure his exercise tolerance. Dr. Gibson was not himself present at the test, but was relying on the description of events given to him by Dr. Lee. He believes that what Dr. L. Lee had witnessed during the test was an episode of pulmonary oedema. This condition is a complication of heart disease and is the result of advanced lung congestion strongly correlated to breathlessness.

Dr. Gibson believes that there is a likelihood that this condition will recur at a moment of particular stress should, for example, the Applicant choose to give evidence in his own defence. It is a life threatening condition usually requiring emergency hospital admission. It is just as likely to be induced by mental stress as by physical exertion. The point is made that someone with a damaged heart will not be able to cope with the increase in his stress level in the same way that a more healthy person can. Dr. Gibson also believes that, despite the hopeful signs over the past few years of stabilisation of the Applicant's condition, the Applicant is nevertheless at serious risk of dying in the near future, and puts the chance of that happening in the next twelve months at about 30%. He conceded, contrary to his earlier evidence, that the Applicant should be regarded as being in the 'Class III category' of heart patient and not in the more serious 'Class IV' group which is reserved for patients who are effectively confined to bed.

The Applicant is certainly not in the worst category of heart patients despite Dr. Gibson's initial evidence that he should be so regarded. He goes to work, he has an apparently full-time job as a financier involved it seems with buildings in mainland China. Whether or not this work was stressful, Dr. Gibson was unable to say as he believed the Applicant enjoyed what he was doing.

Professor Camm who, like Dr. Watson and Professor Lacey, was an expert in the very top bracket of eminence and was a most impressive witness, even cast doubt that the Applicant is in the "third" category of heart patients. He is "on the cusp", as Professor Camm put it, between Categories II and III. For the purposes of my ruling, it may not much matter in which of those categories the Applicant finds himself. What is important is that I find clear evidence of an exaggeration having been made by Dr. Gibson which was intended to make the Applicant's condition sound very much worse than it is.

However there is another side to all this. The Applicant is in my judgment still a heavy smoker though he has denied this to at least one doctor. His heart condition may well be due to years of smoking. The bronchospasm which was brought on after the exercise tolerance test on 3 January 1996 was what Dr. Gibson described as a "highly unusual episode". But, as Professor Camm testified, it could just as easily have been a result of many years of smoking or have been one of a variety of other pulmonary conditions as the development of acute pulmonary oedema, which Dr. Gibson believes this demonstrates. In this context, I note that the Applicant's wife, according to what she told Professor Lacey, believes that by smoking, her husband is indulging in a type of suicide and "I sometimes think he wants to end it all by dying of ill health".

I accept and prefer the evidence of Professor Camm that there is no convincing evidence of pulmonary oedema, and that it would be surprising if this condition had arisen since there is no other evidence of any deterioration in the Applicant's cardiac function. I also accept his assessment that, while any patient who has suffered myocardial infarction has an increased risk of dying suddenly, this will be in the order of a 2% chance in the first month afterwards and thereafter a 2% chance for the remainder of the year. After that, sudden death is rare.

In reaching these conclusions, I have also taken into account the evidence of Dr. Zilkha. He attached a high degree of significance to uncorroborated accounts given by the Applicant that he had suffered several recent bouts associated with giddiness accompanied by visual symptoms, yawning and nausea. According to Dr. Zilkha these were suggestive of transient ischaemic attacks. Ishaemia (interference with blood flow to the brain) produces those symptoms. However, it is a feature of these that, despite the Applicant's very natural concerns about his own health, he never went to a hospital and never even reported them to his own doctor as and when they occurred. Dr. Zilkha said in evidence that he was "not surprised" at this though he later changed his answer to one of qualified surprise. He also agreed, in the context of mental impairment with which I shall deal later, that the Applicant can "embellish" his answers. Professor Lacey described the Applicant as being "not a reliable witness concerning his own health". This was implicit also in the evidence given by Dr. Watson. On this ground alone I would reject the evidence that transient ischaemic attacks have an important role in the Applicant's present state of health. However, there are two further compelling factors.

Firstly, when the Applicant collapsed on 18 June 1994 and was taken to the Adventist Hospital, the hospital notes reveal that he was taking moduretic amongst other medications. This would have had the effect of reducing blood pressure and may well have been a contributory cause of the collapse. Dr. Watson believes that the collapse was due to a general decline in the Applicant's physical health resulting from the medication. If further proof were needed, after this episode the moduretic was stopped and this was the last occasion which has necessitated the Applicant receiving emergency hospital treatment.

The second point made by Dr. Watson is equally compelling. If medical opinion genuinely held the view that the Applicant was suffering from transient ischaemic attacks, then he would be receiving warfarin (anticoagulent) as part of his medication. This has never been prescribed for the Applicant.

(iii) Mental Impairment

There is a second aspect of the Applicant's health which has been given detailed consideration although Sr. Michael Ogden Q.C. has not relied upon this to the same degree. When Dr. Gibson first gave a report about the Applicant, he felt that it was possible that there might be some memory deficit resulting from the stroke at the end of 1992, which in turn had brought some cerebral damage in its wake. Understandably enough, it was felt that this should be investigated by a neurologist whose field of expertise would enable him to give a properly qualified opinion. It was in these circumstances that Dr. Zilkha was instructed to comment upon the Applicant's mental ability to give evidence and in particular to investigate whether or not there was psychiatric evidence of organic impairment.

Dr. Zilkha saw the Applicant on 27 February 1994 and wrote his first report on 4 April 1994. He expressed the opinion that the Applicant demonstrated symptoms of 'short term impairment of memory and a fall-off of intellectual capacity .... It is the aspect of impairment of higher cerebral function which will make it very difficult for him to concentrate during court proceedings and any interrogation. The likelihood is that he will have difficulty in following the arguments, giving instructions ..... He is likely to repeat himself and will have lapses of memory. These lapses can, of course, be very serious in court.'

However Dr. Watson saw the Applicant on 12 and 13 August 1994. By this time, the beneficial effects of Enalapril had had time to work. He found the Applicant so different in some aspects to the way Dr. Zilkha describes him that it is hard to imagine it is the same patient. He found the Applicant smart and well co-ordinated in every way, able to understand very quickly all the questions he was asked, and replying in a measured, even way. The Applicant gave a detailed autobiography. It was obvious to Dr. Watson that the Applicant had made an excellent recovery, and that he was greatly improved in the short time between February, when Dr. Zilkha interviewed him, and these interviews in August. Dr. Watson conducted a number of mental-status examinations lasting two hours. These resulted in unusual fluctuations in performance characterised, in particular, by his ability to carry out complex items measuring a particular skill, while failing on simpler related items. Additionally, the Applicant made a number of atypical responses. The most graphic example came with 'four-word cued recall'. In this test, four simple words would be given to him which he would repeat. He was then asked to recall them after 5 minutes. When he was unable to remember he was given clues to remind him. One of the words had been 'apple'. The cue given to him was 'a fruit' and he replied "Sorry". The next cue given was 'app'. He still did not know what it was, and when told it was red or green replied "Grape". His inability to guess the correct answer to this and other simple tests is, according to Dr. Watson, "more markedly impaired than would be expected even for the most demented of patients which Mr. Tan clearly is not".

Taken together, the failure in his responses to the tests were not characteristic of organic cognitive impairment but rather suggest a significant functional (non-organic) component to his poor performance.

Professor Lacey in his report dated 19 October 1994 also refers to highly extraordinary results, even poorer in some examples than the results obtained in similar tests conducted on the Applicant by Dr. Watson a few weeks earlier. One result, arising from the simple 'coin test', in Professor Lacey's opinion 'beggared belief'. It was a probability as regards that test that the Applicant was malingering; with other tests it was more likely that he was exhibiting dissociative (hysterical) phenomena. The difference between these two situations is that the malingerer is fully conscious of what he is attempting to achieve whilst "dissociative symptoms are unconscious". Professor Lacey formed the opinion that the mental state of the Applicant was caused by the stress of the litigation and not by the effect of the stroke. I prefer his evidence to that of Dr. Zilkha who, in commenting in February 1995 on the reports of both Dr. Watson and Professor Lacey, conceded that 'it is not surprising that there is a functional as well as organic component in his performance on mental tests.' In his earlier report Dr. Zilkha had given the clearest impression that any mental impairment was organic in origin, arising from the stroke in 1992.

The kindest thing that can be said about Dr. Zilkha is that his approach is academic. He frequently spoke in highly technical terms related to his specialised field of medicine yet, when these were explored in simple English and in greater depth, they often turned out to be irrelevant to the issue.

Having heard and seen Dr. Zilkha in the witness box I am in no doubt that he looked for any kind of clue to support an 'organic deficit' theory and then attributed to it an importance it did not deserve. I have already dealt with the way, for example, that he relied upon the Applicant's own description of largely unsupported incidents of dizziness and other accompanying symptoms. He gave to these, without questioning their accuracy or looking for other rational explanations, a far greater prominence than they deserved.

Other examples given by Dr. Zilkha of evidence to support the 'organic' theory advanced by him were the Applicant's frequent headaches, which were not as serious as attacks of migraine. He agreed in cross-examination, that these headaches, like the loss of labido to which he also referred, are of little significance. A palm test and test to the soles of the feet showed some evidence of impairment, but a few months later the 'foot test', that checks the big toe reflex, was perfectly normal when Dr. Watson carried it out.

Dr. Zilkha also conducted tests of intellectual function including what is known as the 'Babcock Sentence' which is an out of date test. It was discredited, as Dr. Zilkha had to agree in cross-examination, by the work of Dr. Warburton over thirty years ago. It was certainly fashionable in pre-war days, and it was noticeable that Dr. Zilkha made more than one reference to his own "sometimes old-fashioned" ways. Neither in his report nor in his evidence in chief did he make any mention of the fact that the 'Babcock Sentence' was a discredited test. Even more importantly, he did not say why it had been discredited. It emerged in cross-examination that 50% or more of the ordinary population, with no cognitive impairment, are likely to get the test wrong. In order words the test is valueless and meaningless. Although he denied both that it was a totally irrelevant test and that it was misleading to have omitted reference to the test's shortcomings in his report, the fact remains that it was clearly so. It is a further demonstration of the way this witness has been clutching at any straw in the wind to support his theory of organic impairment and was prepared to maintain his point against all sensible and medical odds. The point was compounded by the doctor's specific reference to the Applicant having been quite unable to cope with the test and yet his wife, after one mistake, got the answer right. Dr. Zilkha denied that this was to emphasise cognitive impairment on the Applicant's part. I do not believe him. His explanation in cross-examination, though not in his report, was that if the subject gets the answer "right" it is only then that the test has a relevance. There is otherwise "no relevance at all to the test". It is not clear from where Dr. Zilkha could have gained this idea because, as Dr. Watson later pointed out, it was never part of the original purpose of the test conceived by Babcock.

Despite the fact that by 1996, Dr. Zilkha had seen the reports of Dr. Watson and Professor Lacey, who are experts who he would know were amongst the most eminent in their respective fields in the world and had seen the modern cognitive tests used by them, he still repeated the 'Babcock Sentence' in January 1996.

I cannot believe that Dr. Zilkha is naive by nature. His distinguished life has given him a wide field of experience. Brixton Prison in London was once part of what he termed "my parish", and as an expert witness he is no stranger to the courts. Despite this, he seems to have clung to untenable theories in the face of so much evidence to the contrary which Dr. Watson and Professor Lacey have provided. By contrast to Dr. Zilkha, the methods they had used were both fair and modern and their opinions were accordingly sensible and reasonable. In my judgment, Dr. Zilkha's whole approach has been blinkered to achieve the object he had been set. Sadly, I did not observe in him the quality of professional detachment that I would have expected from such a witness.

(iv) Conclusions

Bringing together all the material regarding the Applicant's health, medical opinion seems to be agreed that the stress and strain of a long trial for someone in his condition is likely to pose some additional threat to his health. However, his condition, and the symptoms arising therefrom have, for the present time, been stabilised by the medicines he is taking. I accept the evidence that he is in no immediate danger and that, if the Applicant had to give evidence, it may then be necessary to restrict the length of time he spends in the witness box by taking frequent breaks and sitting shorter hours.

I have also taken into account, as a subsidiary factor, that the Applicant has had long standing hearing difficulties but this is rightly not relied upon as a basis for a stay.

It would be setting a dangerous precedent if a defendant's physical condition could in principle provide a reason to stay criminal proceedings permanently. If it was a ground in itself, then the poor health of an accused person would enable him to escape trial regardless of the gravity of the allegation he faced. In the same way, a short life expectancy, whether it is because a person suffers from a severe ailment or is simply very old, cannot by itself be a ground for granting a permanent stay of proceedings.

The question sometimes arises with the sentencing of defendants who suffer from serious diseases as to what extent these considerations should be taken into account. For example, a sentence of 20 years' imprisonment was passed in The Queen v. Suen Shek & Others, Criminal Appeal No. 317/87, on a 38-year-old man suffering from terminal cancer, with a life expectancy of no more than two years. It was held that in such circumstances, the exercise of clemency was a matter not for the courts but the Executive.

There may be situations in which it is proper for a trial to be postponed on account of health, or for a trial to be aborted in order to enable a defendant to recover from an illness that may have afflicted him. I accept that a court might even grant a permanent stay in an extreme case where an accused person is too ill ever to be tried. In practical terms, that might occur where the prosecution have been unable to offer no evidence because of the accused's absence, but would have done so if the defendant had been fit enough to attend court to be arraigned.

Such a situation was hinted at by the defence in the West LB case when, on 12 April 1991, the Applicant's doctor, Dr. Levi Lee, made a report (See exhibit MAMS/243 at p.11, 549 in Vol.35) to the Applicant's solicitors that 'in his present state of health, Mr. Tan is not fit to stand trial. Under the stress of a trial, his precarious cardiac status might decompensate and we may have a catastrophic event on our hands. Under a less stressful atmosphere he may be able to give instructions out of court hours to his advisors'.

In a later report dated 19 July 1991, Dr. Lee suggested that the Applicant could be in court 'no longer than two hours each day'.

The Respondent's solicitors, Clifford Chance & Co., were duly informed, and resulting from this development, an I.C.A.C. surveillance operation began in October 1991 for the purpose of watching the Applicant's movements. It soon became obvious that the Applicant was able to lead a normal life and travelled from his homes in Hong Kong and New Territories to go to his office in Central. When these observations, which are fully set out in the affidavit of Mr. Brian Carroll, were duly reported to the Applicant's solicitors on 10 January 1992, no more was said about sitting short hours during the District court trial.

I have read nothing in the reports and heard nothing in the evidence to reveal that the Applicant would be physically unable to withstand a long trial beyond the fact that he has a short life expectancy, and that from time to time if he were to give evidence, it may become necessary to make special arrangements to take account of his need for a break at regular intervals. In my judgment, he is not so gravely ill that it would make it impossible to conduct a trial that is fair to him. Putting it shortly, the Applicant appears to be able to look forward to many years of active life now that he has survived the immediate danger periods following his heart attack and stroke.

In accordance with these findings, this ground of the application must fail.

10. Ruling

Having reviewed all the grounds upon which this application has been made, and for the reasons I have already given, it is my ruling that this is not a case in which it is appropriate to order a stay of these proceedings.

11. Footnote

The ruling I have made should not be taken as having given the seal of approval to the manner in which it has taken the prosecution thirteen years to reach the stage where it is finally able to present its case on the BMFL charges. I have outlined already many of the obstacles deliberately placed in its path to slow down the proceedings, particularly by those acting for Osman and Rais. Nevertheless, this situation should never have been allowed to develop. Inevitably, the well-known maxim 'justice delayed is justice denied' springs to mind. The high standards of fairness combined with efficiency, which have long been the hallmark of Hong Kong's system of justice, have been allowed to slip in this instance in the most dramatic fashion. It hardly needs to be said that defendants faced with criminal allegations frequently bear great anxiety in anticipation of the trial. The same may also apply to civilian witnesses who are expected to testify at the trial. Obviously it is fairer to both sides that these anxieties are kept to a minimum, and that trials take place while memories of events are still reasonably fresh.

Regardless of who bears responsibility for the delay in the present case, the fact remains that the six-year delay between 1988 and 1993 have, in particular, made a mockery of justice.

From an early stage in the investigation into the affairs of Carrian it appears that this case was perceived by many to have been one of the largest frauds in criminal history. Perhaps it was the largest at that time. That is not, however, any excuse for the prosecution to have approached the case as if each and every allegation of any importance had to be relentlessly pursued. The case was altogether too complex for that. What was needed was a strong controlling hand to simplify the potential charges by isolating a small number of serious sample offences. Unfortunately the prosecution took a different course. Instead of simplification they seem to have fallen into the trap of deciding, as a matter of policy, that they would present an overall picture of criminality against everyone on every serious charge they felt able to prove. Perhaps they were propelled into this course by public outcry following the Carrian collapse. The inevitable result was that the case grew to such mammoth proportions that, with each new development, new problems came to the surface. As one step was taken forwards, two steps had to be taken backwards.

The result has been that instead of a series of short trials a decade or so ago, this Court is now being asked to embark upon a massive trial in terms of length and cost out of all proportion to its now faded significance. The events with which this trial would be concerned have long since passed into the pages of the history books.

The charges remain serious. But if they were once deserving of lengthy prison sentences, as demonstrated by the examples of Shamsudin and Rais who each pleaded guilty to a small selection of offences in very different circumstances, that element has long since evaporated if the defendant were to do the same.

This is not intended to be a homily but, if lessons are to be learned for the future, something needs to be said in an effort to ensure that there is no recurrence of what has happened. It is of course easy to be wise after the event by using the benefit of hindsight. There are some cases where public interest may demand that large numbers of offences are prosecuted to their fullest extent. These are usually confined to allegations of extreme violence where the offenders pose a grave danger to the public. Obvious examples are to be found in cases of serial murder or rape. By contrast, fraud and corruption allegations can usually be presented in smaller, fragmented portions of the whole.

The criminal justice system here and in other jurisdictions is bedevilled by large and complex commercial frauds. So often the prosecution needlessly reverts to conspiracy charges to demonstrate the full ambit of a defendant's alleged criminal responsibility where substantive offences, such as obtaining by deception or false accounting, would have been more than adequate. Seldom is anything lost by taking this course, and much is gained. The Court's powers of sentence are usually about the same, and the trial is rendered manageable. It is generally fairer to everyone and, not least in the High Court, to the jury whose business and private lives are liable to be utterly disrupted by having to spend countless months at court with all the stress that this imposes.

I am acutely aware that Mr. Martin Wilson Q.C., Mr. Anthony Schapel and, more recently, Mr. Naresh Daryanani have done everything in their power since they were instructed for the prosecution, to reduce the size of a case that had been allowed to sprawl beyond control. I am extremely grateful to them all for the assistance they have already given.

Despite the acknowledged skills of those who were previously instructed by the Attorney-General's Chambers to prosecute, the case was never kept in proper check and, as time went by, it must have become an embarrassment to all who were associated with it. From the outset, it must have seemed obvious that the BMFL case would be impossible to prepare and present within a sensible time if some change in tactics was not employed. This was either overlooked or ignored in the relentless pursuit of all the major offenders on every allegation that it was felt could be substantiated.

The result has been that the Defendant has now been on bail for a total of thirteen years. For ten of those years he has been on bail for the charges which feature in the present indictment. It would be hard to imagine that there can be any precedent for this situation. The bail terms have subjected the Defendant to considerable restrictions upon his freedom. Understandably, he has not once been permitted to leave Hong Kong. Even his applications to go to the United States of America for medical treatment and to go to Malaysia for evidence-gathering sessions were refused. In this context, it has been drawn to my attention that as long ago as January 1986, following his arrest for these offences, objection was made to bail in principle. It has been submitted with some force that even at that time, to have adopted this stance towards bail, the prosecution must have considered that it had a strong case against the Defendant which would soon be ready to proceed.

As I have indicated already, some of the delay has been caused by and on behalf of the Defendant and, to a much greater extent, by the actions of co-defendants which were beyond his control. However, the opportunity to create these delays would never have arisen if the prosecution had approached its task from an early stage in a more sensible way, by heavily restricting and limiting the scope of its enquiry. This is very different to saying that these proceedings should be stayed. As Lord Lowry said in R. v. Horseferry Road Magistrates' Court, ex parte Bennet (1993) 3 WLR 90 (at page 116 E-G):

"The discretion to stay is not a disciplinary jurisdiction and ought not to be exercised in order to express the court's disapproval of official conduct. Accordingly, if the prosecuting authorities are guilty of culpable delay, but the prospect of a fair trial has not been prejudiced, the court ought not to stay the proceedings ......"

The ruling I have made is not made without some sympathy for the Defendant even though undiluted sympathy would be misplaced in the particular circumstances that prevail here. The stress of awaiting trial for this astonishing length of time must have been almost unbearable. Professor Lacey stated in his report:

"Mr. Tan emphasised how he would work long hours, sometimes going 'three nights without sleep'. At this point in the interview he became emotional and tearful. He stood up and walked around the room. 'For 11 1/2 years I do nothing', after a life time of intense business activity, now 'I just stand by for my lawyer, who shows me papers and asks, what is this; I cannot understand the wording. I tell my lawyer I cannot remember. Is this justice ? I have to keep all my emotions inside. They told me I can't talk to anyone, but I feel I wish to talk to you because you are a doctor. People accuse you and you have to keep silent. I have to keep everything in my head (Mr. Tan touched his head at this point) or in my heart (he touched his chest). Now they just put the blame onto me'."

(At page 11) When dealing with the greater likelihood that the Applicant's mental state is more akin to (functional) dissociative phenomena than malingering, he went on to state the following:

"This makes it more difficult for the court, as Mr. Tan would be unaware that his symptoms are caused by the stress of litigation, i.e. he will present in a convincing manner. It is not possible within a courtroom to prove or disprove malingering or dissociative illness. As far as the court is concerned, it probably does not matter; what is clear is that the mental picture does not support Mr. Tan's mental state as being due to his stroke alone................

..................I believe that Mr. Tan is perfectly capable of understanding the charges levelled at him, of answering questions put to him and of instructing counsel. I also believe - though in saying this I somewhat extend the brief given to me - that it is in Mr. Tan's mental interest to come to court as soon as possible. The litigation is having a profound effect on him and his family. As soon as it is resolved one way or the other, many of the symptoms will dissipate........................"

In summarising the position Professor Lacey went on to say:

"Mr. Tan has suffered a stroke and a myocardial infarction from which he has made an excellent recovery. There is no evidence of psychiatric illness, neurotic or psychotic. The stroke has, however, exacerbated certain aspects of his previous obsessional personality giving rise to obsessisonal ruminations, preoccupations and rituals. During the court case I suspect Mr. Tan will suffer chest pain and may faint. Although further physical deterioration is always possible, it is more likely that these will be emotionally determined. The mechanism will be either dissociative (more likely) or malingering and no one will ever know which. Mr. Tan is appropriately sad and has recently been apathetic. By consensus, he is a shadow of his former self and the lengthened preoccupations of litigation are destroying him in his own eyes and severely damaging his family relationships. He avoids issues by dissociative mechanisms and the strength of his obsessional personality. The humane approach would be to proceed with litigation with alacrity."

While a recitation of those perceptive words from Professor Lacey would in certain circumstances provide the most powerful mitigation for the Defendant, they have not provided any support for his application to stay. It can only be hoped that the humane approach suggested by Professor Lacey can be achieved.

(M. Stuart Moore)

Judge of the High Court