THE QUEEN v. LEUNG HUNG AND ANOTHER

IN THE COURT OF APPEAL

1986, No. 617
(Criminal)

Headnote

Abuse of process – inordinate delay in bringing prosecution – requirement that the prosecution should offer explanation – prejudice.

IN THE COURT OF APPEAL

1986, No. 617
(Criminal)

______________

Dates of hearing: 7th and 8th July, 1987.

______________

DECISION

______________

Yang, Ag. C.J.:

1. By the first ground of appeal, the applicants complain that they have been prejudiced by the inordinate delay in the bringing of the prosecution against them, i.e. some 4 years after the events which formed the subject matter of the indictment had arisen.

2. The matter was raised on their behalf at the trial as a preliminary point.

3. Having heard submissions, the trial judge, Bewley, J., refused an application to stay the proceedings and ruled that he was satisfied that the delay in this case did not warrant interference by his court at that stage of the trial.

4. It is not clear from this ruling whether the learned judge thought that there had been a delay, but not an inordinate one, or whether he considered that there was no prejudice caused in spite of an inordinate delay.

5. In our judgment, the Judge ought, in the circumstances, to have ruled that, on the face of it, there had been an inordinate delay which called for an explanation by the prosecution. If the explanation was satisfactory, then the trial would proceed in the normal course. If no satisfactory explanation was given, then the Judge would have to go on to consider whether there was such prejudice as to constitute an abuse of process. 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.

6. In the case now under consideration, the Judge did not call for any explanation from the prosecution. This was wrong. We accept Mr. Plowman's argument that this is not an appropriate case to hear evidence in this court for the purpose of determining the issue as to whether there was an inordinate delay. It is his submission that, if the Judge erred in the manner indicated, then, in view of the lapse of time since the offences and the nature of the evidence particularly that of conversations between various people, the appeal should be allowed and the convictions quashed. It would, he further contends, be wrong to order a retrial. We disagree. The evidence against the accused was strong. They did not give evidence or call any evidence in their own defence. In all the circumstances, and in spite of the length of time since the commission of the offences, we do not think the accused will be prejudiced by a retrial.

7. If this were the only ground of appeal before us, we would have no hesitation in ordering a retrial, but in the light of the remaining ground, i.e. ground 4(a), which Mr. Plowman indicates he wishes to pursue, we would defer making an order until we have heard him on that sole remaining ground.

8. We should deal with another matter before we conclude. The prosecution in the court below took the position that whilst there had been a delay, the delay was not inordinate. We do not think that in a retrial, the prosecution is bound by the narrow position they took before Bewley, J.