HKSAR v. CHAN CHUN CHUEN

HCCC 182/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO HCCC 182 OF 2012

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R U L I N G

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1.  On 8 August 2012 this matter was set down for a 60 day trial before me commencing on 22 April 2013. Today (24 January 2013) is the day set down for the pre-trial review of that trial.

2.  On 15 January 2013 by letter from the defendant solicitors, I was informed that an application was to be made for the adjournment of the trial, which necessarily included the adjournment of this pre-trial review hearing.  To that end, I was informed that Mr MK Wong SC, with him Mr Andrew Kan and Ms Anita Wong, would be applying for an adjournment on the defendant’s behalf and that his instructions would be limited to that application only.  An early date was sought for the hearing of the application. On 16 January I directed that any application for an adjournment of the hearing and the pre-trial review should be dealt with today.  I also made clear that if the application was successful, the hearing and the pre-trial review would be adjourned.  If the application was not successful, the pre-trial review would follow immediately upon my decision with the trial dates to remain as scheduled. Since Mr Wong’s instructions were to be limited to the application for an adjournment, I directed that counsel or the defendant’s instructing solicitor should be in a position by today to advise the court in all matters relevant to the pre-trial review hearing.

3.  The application for an adjournment has two bases. Firstly, the defence wish to arrange for the testing of DNA swabs taken from the three documents which are the subject matter of this trial.  They are the alleged forged Will of 26 October 2006, the undated draft Will and the Peking University envelope.  The tests are to be undertaken in the United Kingdom by a company known as Cellmark Forensic Services, whom I shall refer to as Cellmark.

4.  Secondly, the defendant is seeking to instruct a new team of counsel, since his leading counsel who conducted the preliminary enquiry before the Magistrate is now said to be beyond his financial means.  It was asserted in the letter of 15 January from the defendant’s instructing solicitors that that new team would need about 10 months to properly prepare for the case before the trial could start.

5.  The application for an adjournment is opposed by Mr David Perry QC, with him Ms Anna Lai and Mr Eric Tsoi, who appear for the prosecution.

6.  In relation to the first limb, the genesis of the matter appears to have been the cross-examination of the first witness in the preliminary enquiry before the magistrate by the defendant’s then leading counsel, Mr Alan Hoo SC, on 22 May 2012.  That witness was Christina Li, a forensic scientist with the Hong Kong government laboratory.  She testified that having obtained a number of swabs from the documents concerned, she used half of each swab in order to try and obtain a DNA profile from the sample.  The other half of each swab was apparently retained for possible use by the defence.  Each part swab was then tested for the presence of human DNA.  However, no detectable amount sufficient to yield a DNA could be found.  It was put to her that if she had combined the samples she tested individually, she might have been able to obtain a sufficient reading for a DNA profile.  To that suggestion she answered “That might be the case”.  It was then suggested to her “If you add to that combining, if you actually took the other 50% of the swabs, the ones that you kept for the defendant, and add that into the equation, then there’s an even more likelihood that you could get sufficient DNA, would you agree?”  To that suggestion, the witness answered “It could be”.

7.  It appears from Mr Hoo’s remarks to the court on 18 June 2012 that before that evidence was given, the defence did not know that the witness had in fact retained half of the DNA swabs for the use of the defence.  However, they would have known, and the defence expert Dr Whittaker, whose own report is dated 10 May 2012 and who was himself present at the preliminary enquiry, would have known, that the remains of the swabs that the witness did test had been preserved because she refers to that fact at the bottom of page 2 of her witness statement dated 22 December 2010.

8.  As a result of that cross-examination on 22 May 2012, the defendant’s then solicitors, Messrs Li & Lai, wrote a letter to the prosecution for the specific attention of Mr Perry’s junior, Ms Lai, dated 31 May 2012, referring to the evidence and proposing that all items containing potential DNA material, including the remains of the swabs which the witness Christina Li had examined, should be delivered to Cellmark in the United Kingdom for testing.  In that letter the solicitors indicated: “Our client is prepared to bear the reasonable associated costs occasioned by this exercise.”

9.  On 7 June 2012 Ms Lai responded to the defendant’s solicitors to say that the prosecution had no objection to the proposal but suggesting certain elementary, and I would have thought sensible, steps to be taken.  Three of those steps, which one might call conditions, were that investigating officers would deliver the items from Hong Kong to Cellmark, that an independent observer from the government laboratory should be present during the testing process, and that investigating officers would then deliver back to Hong Kong any remaining DNA samples and materials after testing.  Ms Lai made clear that the costs incurred by the investigating officers and the independent observer from the government laboratory would be borne by the Hong Kong government.

10.  On 15 June 2012, Messrs Li & Lai responded positively to Ms Lai’s letter of 7 June satisfying and answering each of the steps or conditions set out in her letter.

11.  So it was that on 18 June 2012 (the defendant having already been formally committed to the High Court for trial on 1 June 2012), Mr Hoo produced a copy of Ms Lai’s letter to the Magistrate and, having referred to its contents, declared - and I quote him - that “this is obviously welcome news for the defence”.  Certainly, he gave no indication of any problem with taking the steps Ms Lai had set out in her letter of 7 June and which had been disclosed to the Magistrate.

12.  It is worth observing at this stage that the defence knew of the prosecution position some 7 and a half months ago.

13.  On 8 August 2012, against that background, this case was set down on the dates I have referred to at the request of Mr Hoo himself who was then still acting for the defendant.

14.  There followed a letter from Messrs Li & Lai to the prosecution on 11 September reiterating their concern that the chain of custody of the exhibits should not be broken.  There was, however, a curious sentence in paragraph 5 of the letter to the effect that reasonable notice as to the time and date of delivery of the items to Cellmark was required as well as the date of the proposed testing so that appropriate arrangements could be made for a DNA expert nominated by the defence to be present as an independent observer.  Since it might have seemed rather strange, if not somewhat oxymoronic, to be referring to a defence nominated expert conducting the test but at the same time acting as an independent observer, Ms Lai responded on 26 September 2012 that arrangements were under way for the delivery of the items to Cellmark for further testing.  However, she pointed out that “in respect of the proposed testing mentioned in paragraph 5 of your letter, we wish to reiterate that the testing should be conducted by an expert or experts instructed on behalf of the defendant, hence the proposed testing to be conducted is a matter for your expert or experts.” She then indicated the identity of the senior chemist of the government laboratory who would be present during the testing process as an independent observer.  So as to prevent contamination or interference with the exhibits, Ms Lai asked to be provided with certain information, upon receipt of which the police would work out a tentative itinerary and time frame for delivery of the items.

15.  However, on the following day, 27 September 2012, the defendant changed his instructing solicitors to his present firm of solicitors, namely Messrs Cheung & Liu.  Having been notified of the change, Ms Lai wrote to the defendant’s instructing solicitors on 28 September 2012 asking for confirmation as to whether the defence still wished to proceed with the further testing of the items concerned.

16.  On 16 October 2012 the defendant’s solicitors indicated that they were waiting for feedback from Cellmark in relation to the matters raised in Ms Lai’s letter of 26 September 2012.  Again, somewhat curiously, the solicitors said that they were given to understand that Cellmark’s fee of £22,875 would be borne equally by the prosecution and the defence.  I have to say that I cannot derive any such interpretation of either the prosecution or Messrs Li & Lai’s intention from any of the correspondence I have seen.

17.  Ms Lai immediately responded the same day, 16 October, that the prosecution had never agreed to share half of the fees to be charged by Cellmark, nor would they agree to do so.  She enclosed the letters from Messrs Li & Lai of 31 May and 7 June 2012 to which I have already referred.  She concluded by saying that “the said fees should be borne by the defence in full if you wish to proceed with the further testing.”

18.  By letter of 25 October 2012, the defendant’s instructing solicitors made a new proposal that the further tests to be performed should be conducted by an expert agreed to by both the prosecution and the defence.  Apart from the address of Cellmark, the solicitors declined to provide the other information requested by the prosecution in their letter of 26 September and suggested that the prosecution ask Cellmark directly.  The solicitors also wrote as follows: “We assume it has been agreed that Cellmark will conduct the DNA testing.  We have not, however, specified or requested any particular expert(s) at Cellmark to conduct the DNA testing.  Given Cellmark’s extensive experience in working with police forces in multiple jurisdictions, perhaps you may wish to propose a suitable expert(s) within Cellmark to conduct the DNA testing.  Alternatively, we can both ask Cellmark to suggest one.  In either case, the expert(s) who will conduct the DNA testing must be agreed by both parties”.  The letter concludes with these words “We reiterate that the further DNA testing to be conducted by Cellmark is a joint exercise.”

19.  I note that this new proposal came about according to the letter on advice from counsel.  I am unclear as to who that counsel was but it could hardly have been Mr Hoo or his team given the understanding that he would have had from the discussions with the prosecution back in June.  If it was Mr Hoo or a member of his team (and I am told that he was unable to receive a brief by the end of October as a result of which he returned the papers in early November), then it represents rather a departure from everyone’s understanding.

20.  Be that as it may, and not surprisingly, Ms Lai responded on 30 October 2012 disputing those concluding words.  She pointed out that “the testing was requested by the defence, and it is to be conducted by an expert or experts instructed on behalf of the defence.  The choice of laboratory, methodology and expert or experts are matters solely for the defence, and the costs incurred are to be borne in full by the defence.” She ended her letter by saying that she looked forward “to receiving your prompt response to the information requested so that appropriate arrangements of the delivery can be made by the police”.

21.  Had matters stopped at that point, I might have been persuaded that there could have been a misunderstanding by the defendant’s new instructing solicitors, although a sensible perusal of the correspondence and the preliminary enquiry exchanges, indicates to me that there should have been no misunderstanding of the parties’ respective positions.  Indeed, it is obvious from the outset and throughout the correspondence that it was the defence who were asking for these tests to be conducted, not the prosecution.  There was then a deafening silence, which has not been satisfactorily explained, between 30 October 2012 when Ms Lai’s letter was received and 19 December when the defendant’s current solicitors wrote again to the prosecution with a string of questions, for many of which I have difficulty in understanding their relevance.   The prosecution had already undertaken to convey the items to Cellmark and given assurances about the integrity of the samples by letter to the previous defence solicitors on 13 June 2012.  All that was, and is, required is an analysis of the samples to see if a DNA profile may be obtained. The solicitors further stated that the information requested by the prosecution by their letter of 26 September had been covered in their letter of 25 October.

22.  Having rehearsed the background, I have to say that I am not impressed at how long this issue has dragged on.  It seems to me that at all times the prosecution have acted immediately, sensibly and appropriately in response to the request by the defence to have further DNA tests conducted.  Whether because of a change of instructing solicitors, or counsel, or a misunderstanding engendered by those changes, or for whatever reason, the matter has dragged on for just under 8 months since it was first raised by Messrs Li & Lai on 31 May last year.  The trial has been set down for hearing on 22 April this year, on dates accepted by then leading counsel for the defence.  By 22 April, it will have been almost 11 months since the matter was first raised by the defence.

23.  It should be remembered that the interests of the defence are not the only interests to be considered in an application for an adjournment of a trial.  There are other parties who would be affected by any delay in the timely trial of a defendant.  In this case, there are witnesses for the prosecution who are to give evidence about matters in 2006 or 2007, some six or seven years ago.  The two principal witnesses for the prosecution gave their first statements concerning those matters in March 2009, almost 4 years ago.  The chances of finding another judge available to sit for three months later in the year are remote, unless those trials which have already been fixed are removed from my list or reassigned to make way for this case with the consequent delay and disruption for other litigants.  In any event, I am the judge seized on this matter, as a result of which I have now read 83 files of evidence.  There are also considerations of the diaries of other leading and junior counsel involved.  And there is, of course, also a public interest in having cases set down, heard and determined within a reasonable time.

24.  I turn now to the second basis advanced in this application.  As I have already observed, this case was set down for trial on the scheduled dates by the applicant’s own leading counsel at a hearing on 8 August 2012.  At that time the trial was 8 and a half months away.  Since then, there has been a change of solicitors and leading counsel and his team of juniors have returned the papers, not because the defendant had lost confidence in them but because he was unable to afford them.  The fact that Mr Hoo would not be representing him was known to the defendant at the end of October last year.  Almost 3 months have passed since then and today Mr Wong appears on limited instructions to ask for an adjournment.  The defendant has had ample time in the meantime to find counsel, leading or junior or both, to represent him.  He could even have looked outside HK for leading counsel had he been so minded.  He would hardly have been denied leading counsel from outside the jurisdiction given the successful application of the prosecution to secure the services of Mr Perry and the reasons set out in Cheung CJHC’s judgment for acceding to that application; although I can understand that he may wish to retain local counsel for a particular reason.

25.  I am bound to observe that there have been on the record since his first appearance no less than four different leading counsel representing the defendant in the Magistrate’s Court; and thus far, four different firms of solicitors.  On 26 May 2011, Mr Chen Huan SC appeared on the instructions of Messrs Reed Smith Richards Butler for the defendant.  At that stage the case was set down for a paper committal at Mr Cheng’s convenience at 11.30 am on 8 July 2011.  However, on 8 July 2011 Mr Clive Grossman SC appeared on the instructions of Messrs Haldanes.  The committal was adjourned to 26 August 2011 because, as Mr Grossman explained, “we were recently given 83 box files…we just need to study it”.  On 26 August 2011, Mr Alexander King SC appeared in place of Mr Grossman, also on the instructions of Mr Jonathan Midgley of Messrs Haldanes.  Notwithstanding that the same firm of instructing solicitors was involved, Mr King was also to inform the court that the committal papers had only recently been delivered to him and he also needed time to peruse the bundles.  It seems to me that the Magistrate’s Court was remarkably tolerant of these adjournments bearing in mind that the same solicitor was instructing two different leading counsel.  In any event, Mr King asked for a new return date for 25 November 2011.  On 25 November, Mr Midgley himself appeared and indicated that there was to be a preliminary enquiry.  That preliminary enquiry was subsequently scheduled to begin, and did begin, on 14 May 2012.  However, by then Mr Hoo SC was representing the defendant on the instructions of Messrs Li & Lai, although he indicated at a preliminary mention on 17 February 2012 that Messrs Haldanes were to remain in the picture in order to deal with certain aspects of the forensic evidence. 

26.  The defendant, as I have said, was ultimately committed for trial to the High Court after a full committal on 1 June 2012.  Had this case being dealt with as a paper committal on 8 July 2011 as Mr Cheng anticipated, this case would already have been tried.  Instead, it is now 20 months since the defendant was charged and first brought before the Magistrate’s Court.

27.  It is now said by the defendant’s solicitors in their letter of 14 January 2013 that they have been informed that any new team of counsel for the defence will need about 10 months to properly prepare for the case before the trial can start.  I have to confess, with respect, that I find that a preposterous assertion and Mr Wong has wisely accepted that he could in fact be ready earlier.  Having read the papers myself in less than 5 days, admittedly without the distraction of other cases, which I appreciate is a constant feature of private practice, but also without the benefit of a junior, I would expect any counsel to be ready for trial in weeks not in months.  Furthermore, it is clear that funds are not in issue, judging from the previous appearances of different leading counsel and junior counsel and given, as the solicitors accept, they were able to agree fees to retain Senior Counsel for a 3 month trial.

28.  Accordingly, I reject the second basis of this application and the reasons therefor.

29.  I return to the first basis of the application. I do not consider that there is any reason to delay this trial on the basis that the defence have not been able to arrange for forensic tests which they first indicated they were intending to obtain almost 8 months ago.  No obstacle has been placed in their path which could not have been dealt with efficiently and expediently or, indeed, with my assistance, given that it has been known since August 8 of last year that I would be the trial judge.

30.  The trial is scheduled to take place in three months time.  There is ample time for the DNA swabs to be sent to England and for an expert report to be obtained.  Even if the instructions to Cellmark can only be confirmed by 1 March 2013, Cellmark has said it expects to finish its report by 6 May.  I would expect instructions to be confirmed by 7 February, which is two weeks today.  I shall discuss that matter again shortly.

31.  At the hearing on 8 August last year, leading counsel then representing the defendant estimated that the trial would take 40 days to be preceded by legal argument which would take 20 days.  I do not know what those legal arguments are but I assume that they will include an application to stay these proceedings.  I say that because that was one of the defence purposes at the preliminary enquiry but which foundered on the jurisdictional issue.  Whether the application to stay is on the basis of the integrity and/or admissibility of the exhibits or forensic evidence or because of pre-trial publicity or on whatever basis or combination of bases, I know not. But clearly, the trial proper, if proceedings are not stayed, will not start on 22 April.  On Mr Hoo’s original estimate the trial proper would not start until 22 May, which is two weeks after Cellmark say their report may be ready.

32.  I am not prepared to take these dates out of the court list.  What I am prepared to say is that the trial proper, by which I mean the empanelment of the jury and the calling of evidence will not start until 22 May 2013.  In saying that, I am not prejudging the legal arguments which could, of course, depending on what they are, result in there being no trial at all.  I am merely saying what will happen if proceedings are not stayed and the trial continues.

33.  The application for the adjournment of the trial and this pre-trial review is, therefore, refused save to the extent indicated. I wish to make it clear to all parties that this trial will commence with the arraignment on 22 April 2013 and proceed with any legal arguments on that day and subsequent days until conclusion and ruling.  It may be that Mr Wong SC will be able to present those arguments.  If he is, so much the better.  If he is not, then someone else will have to present the arguments. If there are to be no legal arguments after all, then the court and the prosecution will be advised prior to 22 April and, apart from arraignment and any other housekeeping matters which might be dealt with on 22 April, the trial proper will commence on 22 May 2013.

34.  To borrow an expression used by Mr Midgley on 25 November 2011 in the Magistrate’s Court, although he no doubt had in mind the civil proceedings as well, “the thing has been trundling down the legal tracks for ever”.  Those tracks so far as this trial is concerned must now come to an end.  The defence have three months to perform the tests and obtain the report they seek before legal arguments commence on 22 April, and four months before the trial proper begins.  In my judgment, they have had more than enough time to obtain a report already.  There seems, with respect, to have been a lack of urgency on somebody’s part fuelled perhaps by a belief that if the defence are not ready for trial because they have not got some evidence they consider important that any trial will have to be refixed because the defendant’s interests are paramount.  If the notion has gained currency that simply because the defence are not ready a three-month trial set down at their behest can be vacated for several months, that notion must be firmly disabused. 

35.  This trial will commence with any legal arguments on 22 April and the trial proper will commence on 22 May 2013 whether the defendant is represented by leading counsel, junior counsel or, I’m afraid, by himself.  It is a matter for the defence to work towards those dates in marshalling their evidence and preparing for trial.  There will be no further adjournment of these dates.

36.  That is my ruling on the application for an adjournment.