HKSAR v. WONG HOI CHUNG AND ANOTHER

HCCC 77/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 77 OF 2004

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RULING

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1.  The Second Accused, represented by Mr James Chandler, applies for a permanent stay of proceedings on two bases.  The First Accused, represented by Mr Anthony Mitchell-Heggs, supports that application.

2.  It is necessary to set out, briefly, the history of this matter.  This is to be gleaned from the, frequently amended but still inaccurate, Chronology of Events as prepared by the prosecution for the purposes of this application.

The background

3.  In short, in early June 2003 a number of people, including the two Accused, were arrested by the police in connection with various robberies.  One of those arrested, CHEUNG Kai-chung, an accomplice, elected almost immediately after his arrest to testify against the others.  He made a large number of statements.  By 13 June 2003 he had been interviewed on 17 specific occasions during which he had related in detail the involvement of the two Accused in 15 cases which had occurred between 1996 to 2003.

4.  CHEUNG Kai-chung was charged with 13 offences and also offered an immunity from prosecution in respect of a further charge of murder which occurred during one of the robberies.  He pleaded guilty, during committal proceedings, to the 13 charges and was committed to the Court of First Instance for sentence.  That sentence has yet to be passed.

5.  This left the charges against the other five persons who had been arrested in early June, including these two Accused.  The proceedings against those five made their way through the prosecution process, with many applications for adjournment by the prosecution.  They all appeared on 11 November 2003 in the magistracy whereupon the prosecution sought to sever the 15 charges into two groups: after this occurred there were eight charges against all five persons which eventually became HCCC58/2004 whilst there were a further seven charges against solely these two Accused, the case number being HCCC77/2004.

6.  It is pertinent to observe that when this severance of the charges into two groups took place the two Accused were represented by the Duty Lawyer Scheme: whilst neither Accused consented to this severance, no objection was raised on behalf of either of them.

7.  The charges against the five persons under HCCC58/2004 were committed at Eastern Magistracy on 13 January 2004 to the Court of First Instance for trial. The indictment under HCCC58/2004 alleged one charge of murder, two charges of robbery (the murder occurred during the course of one of these robberies), one charge of attempted robbery, one charge of conspiracy to rob, one charge of possession of arms and ammunition without a licence, one charge of possession of ammunition without a licence, and one charge of possession of a forged identity card: the five accused in that matter appeared in those charges in different combinations.

8.  On 19 March 2004 the charges in the present matter, HCCC77/2004, were similarly committed for trial. That indictment alleged the commission of seven offences of robbery.

9.  There has been evidence from Ms Louisa Lai, Senior Assistant Director of Public Prosecutions in the Department of Justice in charge of the trial preparation unit, that the reason for applying for severance of the charges into two groups was, fundamentally, a concern about overloading the indictment resulting in unnecessary complexity before the jury at trial.  The obvious solution, she says, was to divide the charges into two groups depending upon the identity of the respective accused:  the eight charges in HCCC58/2004 involved these two Accused as well as the other three arrested persons in varying combinations and formed one obvious group; the seven charges in this matter, HCCC77/2004, are brought only against the two Accused before me thus forming the second group.

10.  It seems to me that the prosecution’s decision to split the trial into separate groups at that stage was an understandable decision and one which could not sensibly be criticised.  No objection was made by or on behalf of the Accused to that course at that stage.  No point is taken now in these proceedings about that decision.

11.  This matter came before the listing judge in the Court of First Instance on 26 April 2004.  The prosecutor sought an adjournment indicating that the two Accused were related to the proceedings in case HCCC58/2004.  The Accused who were then represented by Legal Aid counsel indicated that they had “no objection” to that application.  An order was made that listing of these proceedings would be adjourned to a date after the conclusion of the trial in HCCC58/2004 which was then already fixed for trial in this Court.

12.  HCCC58/2004 commenced on 29 November 2004 before Beeson, J..  One of the five co-accused on the original indictment dropped out of the picture at this stage.  The chronology of events is silent as to his fate although the court file in HCCC58/2004 shows that he pleaded guilty to certain charges. That day, on the joint application of all the remaining accused, including the two Accused now before me, that trial was severed into three. 

13.  The first trial to be conducted was to be that with the present two Accused in which they faced an amended indictment containing five counts, namely, one count of murder, two counts of robbery, one count of attempted robbery and one count of conspiracy to rob. The second trial was to involve one CHU Hung-kin who was to face an amended indictment alleging a single count of murder, being the same count as that to be faced by these two Accused: in other words, there were to be two trials concerning the same count of murder.  The third trial was to involve one AU Kam-tong who was to face an amended indictment containing one count of robbery - being the same count as one of those faced by the present Accused in the amended indictment against them under HCCC58/2004 - as well as one count of possession of arms and ammunition and one count of possession of ammunition without a licence.

14.  It is instructive to have regard at this stage to the outcome of those three trials.  The First Accused before me, WONG Hoi-chung, was found not guilty on the count of murder but guilty by a majority on the count of robbery (during which the murder occurred), not guilty to the second count of robbery and the count of attempted robbery but guilty, unanimously, of the count of conspiracy to rob.  It is accepted by the parties that in respect of the three counts upon which he was acquitted after trial the sole evidence against him came from CHEUNG Kai-chung. 

15.  The Second Accused before me, WONG Chi-hung, was found not guilty on the count of murder, the two counts of robbery and the count of attempted robbery but was found guilty by a majority on the count of conspiracy to rob.  Once again it is accepted by the parties that in respect of the four counts upon which he was acquitted after trial the sole evidence against him came from CHEUNG Kai-chung. 

16.  AU Kam-tong was found not guilty on all three of the charges which he faced. It is accepted by the parties that the sole evidence against him came from CHEUNG Kai-chung. 

17.  The evidence of CHEUNG Kai-chung was agreed in respect of the count of murder against CHU Hung-kin and he did not testify orally, despite the evidence of Ms Lai apparently to the contrary. CHU Hung-kin was convicted of that count.

18.  The point is therefore made on behalf of the two Accused, and it is a forceful one, that what the prosecution now seeks to do is to put these two Accused on trial once again where, it is accepted by the prosecution, the sole evidence against them will come from CHEUNG Kai-chung, a man upon whose evidence two separate juries in two separate trials involving three persons have previously failed to convict in respect of any count where his was the sole, unsupported, evidence.

The bases of the application

19.  The Accused’s application now falls under two heads, a third head regarding delay rightly having been thought not worth pursuing.  The primary submission is that:

(a)     at the time when Beeson, J., granted the application to hold that trial by way of three separate hearings, the basis for the original decision to separate all the original 15 charges into two individual groups was no longer valid as these two Accused then faced the five charges on their own; 

(b)    in consequence, the prosecution should have complied, at that stage, with the provisions of Rule 7 of the Indictment Rules and made application to consolidate the amended indictment against these two Accused under HCCC58/2004 with the present, then still outstanding, indictment;

(c)     by failing to follow such a course the prosecution was in breach of the Indictment Rules and the “general rule” that the prosecution “... must... join in the same indictment charges that “are founded on the same facts, or form or are part of a series of offences of the same or a similar character”” (per Lord Devlin in Connelly v Director of Public Prosecutions [1964] A.C. 1254 @1347); and

(d)    in order for the prosecution to proceed the prosecution must show that “special circumstances” exist in the present matter otherwise the appropriate course is for an order to be made that the indictment remain on the file marked “not to be proceeded with”.

The failure to comply with the indictment rules

20.  Rule 7 of the Indictment Rules framed under s.9 of the Criminal Procedure Ordinance, Cap. 221, reads

“Subject to section 18 of the Ordinance, charges for any offences may be joined in the same indictment if those charges are founded on the same facts, or form or are part of a series of offences of the same or a similar character.”

21.  Four out of the five counts on the amended indictment against these two Accused in HCCC58/2004 concerned robberies whilst the fifth offence, murder, occurred during the course of one of those robberies.  All seven of the offences on the present indictment under HCCC77/2004 are robberies, albeit of varying degrees of severity and over a period different from that in HCCC58/2004.  There is no dispute that all 12 counts could have been preferred in a single indictment:  Ms Lai correctly accepted this to be so in cross-examination.

22.  It emerged clearly from Ms Lai’s evidence that she was fully aware of the granting by Beeson, J., of the application for severance in HCCC58/2004.  At first, Ms Lai indicated that she could not recall whether she had been asked to reconsider whether there should be one or two indictments against these two Accused once Beeson, J.’s order had been made known to her: she went on to speculate what her reaction would have been had she been asked to do so.  That speculation is unhelpful.  It is particularly so in view of her later acceptance during cross-examination that as a matter of fact she had not revisited or reconsidered the changed position or her earlier decision. 

23.  It is clear, therefore, that the prosecution indeed breached the Indictment Rules once Beeson J. had granted the severance application: the plain and simple fact is that it did so because the person in overall control of the conduct of these proceedings simply failed to address the changed circumstances.

24.  The Accused rely largely on the decision in Connelly for support for their contention.  Although that case was directed towards the availability of a plea of autrefois acquit in respect of more than one charge flowing from the same or similar facts as well as the concept of issue estoppel in criminal proceedings, consideration was given to the general principle of the duty upon the prosecution to prefer all charges in one indictment. In this connection Lord Reid said, at 1296:

“So the general rule must be that the prosecutor should combine in one indictment all the charges which he intends to prefer. But in a case where it would have been improper to combine the charges in that way, or where the accused has accepted without demur the prosecutor’s failure so to combine the charges, a second indictment is allowable.” [Emphasis supplied]

25.  Lord Devlin said, at 1346:

“… the only result of the separation is to present the prosecution with a second chance of destroying the alibi, and that on the face of it seems to be oppressive.”

and continued, at 1347:

“I consider it to be within [the power of judges to make and enforce rules of practice] for the court to declare that the prosecution must as a general rule join in the same indictment charges that “are founded on the same facts, or form or are part of a series of offences of the same or a similar character”…; and power to enforce such a direction…by staying a second indictment if it is satisfied that its subject-matter ought to have been included in the first.”

26.  Lord Devlin went on to refer, at 1358/1359, to Rule 3 of the Indictment Rules, 1915, which to all intents and purposes equates with Rule 7 of our current Indictment Rules, concluding, at 1359:

“As a general rule a judge should stay an indictment…when he is satisfied that the charges therein are founded on the same facts as the charges in a previous indictment on which the accused has been tried, or form or are a part of a series of offences of the same or a similar character as the offences charged in the previous indictment.  He will do this because as a general rule it is oppressive to an accused for the prosecution not to use Rule 3 where it can properly be used.  But a second trial on the same or similar facts is not always and necessarily oppressive, and there may in a particular case be special circumstances which make it just and convenient in that case.  The judge must then, in all the circumstances of the particular case, exercise his discretion as to whether or not he applies the general rule.  Without attempting a comprehensive definition, it may be useful to indicate the sort of thing that would, I think, clearly amount to special circumstances. … If the prosecution considers that there ought to be two or more trials, it can make its choice plain by preferring two or more indictments. In many cases this may be to the advantage of the defence.  If the defence accepts that choice without complaint and avails itself of any advantage that may flow from it, I should regard that as a special circumstance; for where the defence considers that a single trial of two indictment is desirable, it can apply to the judge for an order…” [Emphasis supplied]

27.  The principles enunciated in Connolly have been widely followed, in this as well as other jurisdictions.  (See, for example, R vDabhade [1993] Q.B. 329, C.A., R v Beedie [1998] Q.B. 356, C.A., HKSAR v Lee Ming Tee & Ano. FACC8/2000, Yeung Chun Pong & Ors vSecretary for Justice CACV368/2005)

28.  Assuming, without deciding, that those principles apply in a matter such as this, where the second indictment forms or is a part of a series of offences of the same or a similar character as the offence/s charged in the previous indictment, the issue in this matter then becomes whether the prosecution has shown that special circumstances exist that should permit the prosecution on the second indictment to proceed.

29.  Mr Poon, who appears for the prosecution, submits that they do and that they are to be found in the evidence of Ms Lai where she testified that she held the view, even now, that a total of 12 robbery counts on a single indictment would be “difficult” for a jury in view of the voluminous evidence and that the indictment would be regarded as being overloaded.  I do not agree that that is where they are to be found, although I am satisfied that they do exist. 

30.  The real issue in any future trial, as has been demonstrated in the previous two hearings, will be the credibility or reliability of CHEUNG Kai-chung.  The evidence of the additional witnesses who would be called to testify does not support, so I am told, the evidence of CHEUNG Kai-chung so would not directly implicate the Accused.  In the circumstances, it is hard to see how that evidence would be extensive or could properly be regarded as likely to constitute difficulty for a jury.

31.  In reality, the special circumstances arise from two situations:  firstly, the Accused acquiesced in, and even now have no complaint concerning, the original severance of the charges into the two groups upon appearance in the magistracy and in the arrangement to allow the indictment in HCCC77/2004 not to be listed until the conclusion of HCCC54/2004, the latter clearly being an “advantage” as contemplated by Lord Devlin; secondly, the fact that it was the Accused themselves, not the prosecution, who sought severance of the trial in HCCC54/2004 into three hearings knowing full well of the existence of the pending second indictment. 

32.  Even recognising the failure of the prosecution to reconsidering the issue of joinder of the two indictments once that order had been made by Beeson, J., the fact is that the opportunity for the prosecution to have sought joinder, or indeed for the Accused themselves to have sought joinder had they regarded it as being in their interests, was brought about by the Accused’s own positive conduct, not by any act or omission on the part of the prosecution.  In my judgment it now does not lie in their mouths to complain about the second indictment being preferred.

33.  In seeking to persuade me to exercise my discretion in their favour on the alternative basis the argument runs, in paraphrase of all that has been said, that

(a)     the two Accused have been prejudiced by the conduct of the prosecution there having been, at the least, negligence on its part:  the Accused specifically indicate that they do not allege mala fides on the part of the prosecution;

(b)    each is prejudiced in the conduct of his defence in that, firstly, the effect of the previous trials is to alert CHEUNG Kai-chung as to the likely direction of cross-examination and, secondly, that the Accused will be handicapped by the obvious difficulties in cross-examining as to CHEUNG Kai-chung’s credit and character without disclosing the previous proceedings against them;

(c)     given the failure of two previous juries to convict on his unsupported evidence, it is unfair to put forward CHEUNG Kai-chung as a witness of truth, as the prosecution inevitably intends to do; and

(d)    looking at the matter in the round there has been an abuse of  the process of the court arising from oppressive conduct on the part of the prosecution which results in the Accused being unable to have a fair trial.

34.  It is clear from the authorities that a court is possessed of a discretion which extends to enable it to stay a second prosecution where that second prosecution can properly be said to be oppressive in nature.  See for example R v Horsham Justices ex parte Reeves 75 Cr App R 236, R v Willesden Justices ex parte Clemmings 87 Cr App R 280, R v Harding (1995) CLR 737 and R v The Old Street Magistrates’ Court ex parteDavies (1995) CLR 629.

35.  However, it is now well settled in Hong Kong that stay of proceedings on the ground of abuse of process is a course which should be followed only in exceptional circumstances.  In HKSAR v LEE Ming Tee &Ano. (2001) 4 HKCFAR 133 the court, after considering the issue of the stay of proceedings based upon the inability of an accused to secure a fair trial, went on to consider the issue of abuse of process by virtue of the prosecution’s conduct and observed:

“42.   …These are the rare cases where the court is prepared to grant a permanent stay even though a fair trial undoubtedly remains possible. The leading authority is the decision of the House of Lords in R v Horseferry Road Magistrates’ Court, Ex parte Bennett [1994] 1 AC 42, where, although the fairness of the trial was not in question, the court granted a stay because the circumstances involved an abuse of power which so offended the court’s sense of justice and propriety that the entire prosecution was tainted as an abuse of process.

43.    While the jurisdiction on this dual basis clearly exists, it is only most sparingly exercised: Tan v Cameron [1992] 2 AC 205 at 221; Jago v The District Court of New South Wales (1989) 168 CLR 23 at 31; Ex parte Bennett [1994] 1 AC 42 at 74.

44.    There are cogent reasons why in principle and in practice such stays are highly exceptional.

… even though official misconduct may be involved in the bringing of the prosecution, the court does not exercise the jurisdiction to stay proceedings as a means of disciplining the police or prosecuting authorities. …

The public interest lies in the guilt or innocence of the accused being fairly and openly determined at trial. For this to be displaced, powerful reasons must exist for concluding that such a trial, although fair, would nonetheless constitute an intolerable abuse of the court’s process. The instances where such an argument has any prospects of success must necessarily be very rare.”

36.  Notwithstanding the lack of allegation by the Accused of mala fides, it is still necessary to consider the facts as they have been disclosed in Ms Lai’s evidence as the positive decision which Ms Lai said she had taken to proceed with the present indictment, is relevant to this aspect of the application.

37.  Ms Lai testified that this decision had been based on three factors:  firstly, that there was the present outstanding indictment; secondly, the willingness of CHEUNG Kai-chung to testify for a third time; thirdly, that to proceed with this indictment would reflect the “overall criminality” of the conduct.  She amplified this latter aspect by saying that the sentence imposed upon the Second Accused inadequately reflected that criminality because he had been sentenced to serve a period of “seven years” imprisonment: she eventually conceded that this is factually incorrect - he has been sentenced to serve a period of 15 years imprisonment but said that she “probably knew” the correct sentence at the time when the decision was taken.

38.  Despite the number of charges upon which the various accused in HCCC58/2004 had been acquitted where the only evidence was that of CHEUNG Kai-chung, she accepted that she had neither read the transcripts of any of the three sets of proceedings nor had she read any of Beeson, J.’s, summings up.  She spoke of having a discussion with the trial counsel who had indicated the CHEUNG Kai-chung had “come up to proof” but she had not made any notes of the discussions which she says took place.

39.  She added that whilst the prosecution may have considered not proceeding with the present indictment if the Accused had been convicted of murder, she had not considered whether the prosecution should proceed in the light of the number of acquittals.

40.  The principles adumbrated in LEE Ming Tee are applicable to the exercise of the discretion as to whether to stay these proceedings.  On a proper application of those principles the conduct of the prosecution would have to demonstrate, or be so close to demonstrating as would make no material difference, mala fides.  As unsatisfactory as the conduct of this matter may have been, it does not go that far.

41.  I am satisfied that on the facts of the present matter there would be no justification for me to exercise my discretion to stay the proceedings.