SECRETARY FOR JUSTICE v. CHAN CHUN CHUEN AND ANOTHER

HCMP 715/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 715 OF 2010

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BETWEEN

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J U D G M E N T

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1.  This is a simple application for certain exhibits which had been produced in the course of a probate trial to be released to the police for police investigation, and the application is made pursuant to Order 35, Rule 12. Under that rule, unless the court otherwise directs, the exhibits shall be retained in the custody of the Registrar pending appeal. For investigation work involving the documents which have been produced as exhibits in the probate trial, the police therefore needs to obtain leave from this court to do so.

2.  Bearing in mind the purpose of the rule, the prime consideration of the court must be whether the release of the exhibit would have an adverse effect on the course of the appeal.  At today’s hearing, none of the parties has made any suggestion that the release of the relevant exhibits to the police for their investigation would impede the course of the appeal.  On the other hand, both the 1^st Defendant as well as the Plaintiff in the probate action say they have no objection to the document to be released for police investigation subject to a point made by the 1^st Defendant.  The 1^st Defendant said when the police conduct their investigation with regard to these documents, in particular in relation to the fingerprint testing of the will in question, the 1^st Defendant should be able to have his expert present and also to participate in the testing process.

3.  Mr Turnbull, on behalf of the Secretary for Justice, submitted that there is no reason why this should be permitted as this is a criminal investigation and there is no right on the part of the Defendant to have his expert present for the purpose of those testings.  On the other hand, on behalf of Mr Chan, Mr Lam SC, as well as Mr Yeung SC, submitted that because of the right to a fair trial, the 1^st Defendant should not be deprived of the opportunity to conduct the same test.  And bearing in mind the destructive nature of the fingerprint testing, unless the proposed protocol of the 1^st Defendant is followed, the right of the 1^st Defendant to a fair trial would be infringed.

4.  As I said in the course of submissions, whilst it is correct that when exercising my discretion under Rule 12 I should bear in mind the fairness of the matter, and when I grant leave for the release of the document to the police I should consider whether I should impose conditions which is just in the circumstances, I do not accept that to give the document to police for fingerprint testing in the present circumstances without requiring the police to allow the Defendant’s expert to be present can be said to be unfair.

5.  It is not for this court to regulate or direct the police how they should carry out their investigation.  Also it is not for this court to monitor how the police expert would conduct the relevant test.  There is no evidence whatsoever (and I think Mr Lam disavowed any suggestion) that the police expert would not be competent or careful or impartial in the performance of the test in relation to the fingerprint aspect.

6.  As regards the right to a fair trial on the part of the Defendant, the Defendant would have every opportunity to challenge the report of the police expert.  Of course, I bear in mind that as far as the fingerprint test is concerned, because of its nature, the evidence shows that it can only be done once.  However, I do not think the cases cited by Mr Lam and Mr Yeung support the proposition that a fair trial or a right to fair trial under Article 10 of the Hong Kong Bill of Rights requires the prosecution to allow the presence of the defence expert in the execution of a fingerprint test.

7.  Fingerprint test has been used for the criminal investigation for quite a long while, and neither counsel can draw my attention to any occasion where it has ever been suggested that simply because of the lack of presence or lack of opportunity of a defendant’s expert to be present for the purpose of those tests, the use of fingerprint test result would be unfair to a defendant.

8.  Of the cases cited on behalf of the 1^st Defendant, I do not think they go to the extent of supporting the propositions put forward by counsel.   The first case cited was Director of Public Prosecutions v British Telecommunications (1990) Times LR 742.  In that case the English Divisional Court held that at the highest, the lack of defence participation or lack of opportunity to the defence to be present at the time of the testing of a vehicle involved in a vehicle-related offence would affect the weight of the evidence but not its admissibility.  On the facts of that case, the Divisional Court actually held that it was wrong for the justices to pre-empt the matter by excluding the relevant evidence.  I do not see how one can extract from that case the proposition that without giving a defendant the opportunity to be present would render the whole trial being unfair.

9.  The next case referred to is the case of Boyd [2004] RTR 2.  Again, it is a case about a traffic accident and the relevant material concerned in that particular case was the blood sample obtained from the defendant.  The defendant was charged with an offence of driving under the influence of drugs, and the blood sample was taken from the defendant and tests were conducted by the prosecution expert.  The complaint was that the sample was mishandled, as a result of which the defendant could not conduct a test on the sample by her expert.  But there was evidence in that particular case to cast doubt on the test done by the prosecution expert.  Therefore it was open to the defendant to challenge the result produced by the test of the prosecution expert.  And that marks the significance: because of the lack of sample, the defendant’s expert could not carry out a proper test to challenge the test result of the prosecution expert.

10.  Contrasting that with the present case, as I have said, there is no evidence to suggest that the police expert would not be handling the matter competently.  There is in fact no evidence to suggest that the expert engaged by the 1^st Defendant is professionally superior to the police expert in terms of carrying out fingerprint testing.  The various points canvassed by the 1^st Defendant’s expert in letter will no doubt be considered by the police expert in the conduct of the test.  If necessary, submissions can be made on behalf of the defence later on in criminal proceedings (if any) to challenge the weight of the result of the test done by the police expert.

11.  The last case cited on behalf of the 1^st Defendant is the case of Leatherland v Powys [2007] EWHC 148, a 2007 decision of Mr Justice Owen in England.  That case concerned the destruction of certain sheep carcasses in relation to the prosecution of offences in respect of the animals.  The conclusion of the court primarily focused upon that such destruction.  It was held that even though the destruction is not a breach by the trading standard officers under his statutory duty, it tantamount to a breach of the 1997 Code of Practice under Part 2 of the Criminal Investigation and Procedure Act (1996).  Under paragraph 5.1 of that Code there are provisions with regard to the retention of material by the prosecution and the court held that that particular aspect of the Code of Practice was infringed because of the destruction of the carcasses.

12.  There was a specific finding pertaining to the facts of that case that without the availability of the carcasses in question, the prospect of the defence challenging the evidence of the prosecution expert was lost.  In that particular case, the prosecution’s only evidence was the evidence of that particular expert (as one can see at page 6 of the copy of the judgment handed to me by Mr Yeung).

13.  So that is again a very different scenario from ours.  I do not know what evidence the prosecution will have in the criminal proceedings (if any) against the 1^st Defendant.  In fact, I do not know whether the police would definitely proceed with the prosecution at this stage.  As I have said in the course of submissions, after the test by the police there could be many possibilities, and I am not going to speculate.  But even assuming that there will be prosecution, it is a matter of speculation at this stage that the only evidence against the 1^st Defendant would be the report from that particular fingerprint testing.  In fact, I do not think that is likely to be the situation in view of the evidence already added at the probate trial.

14.  Therefore, I am not convinced that the court should impose the conditions as put forward in the 1^st Defendant protocol as conditions for the release of the exhibit to the police for their investigation. 

15.  I also take into account the fact that if fingerprint testing is thought to be relevant, the 1^st Defendant has had more than ample opportunity during the preparation for the probate trial to apply for such evidence to be obtained through their own expert.  But up to now I have no convincing explanation from the 1^st Defendant why this had not been done.  To allow the 1^st Defendant to conduct this test at this stage, albeit in the pretext that it is in anticipation of a defence to the potential criminal prosecution, would still be a second bite of the cherry:  if the 1^st Defendant were to obtain a favourable report, I can foresee that there would be attempts by him to use that report for the purpose of the appeal.  I do not regard that to be an appropriate exercise of my discretion.

16.  Taking all these considerations into account, I will exercise my discretion by releasing the exhibits to the police for the necessary investigation.  As I said in the course of submissions, I cannot prevent the 1^st Defendant from taking whatever steps he is advised to safeguard his interest.  But it seems to me at this stage the criminal investigation is still ongoing.  If necessary, he can make whatever application he deems fit eventually when there are criminal proceedings against him.  Alternatively, if he is so advised, he may try to launch injunctive proceedings.  Yet for my part, I do not see any prospect of success in such application for injunction.

17.  As far as the actual wordings of the order is concerned, I make an order in terms of paragraph 1 of the originating summons. 

(Submissions on form of order and submissions on costs)

18.  I think the 2^nd Defendant being a party to proceedings, they have the right to be present, and I will order the 1^st Defendant to pay costs of the Secretary for Justice as well as the 2nd Defendant.