THE QUEEN v. CHIU TE-KEN, DEACON AND ANOTHER

C.C. No. 122 of 1992

HEADNOTE

Criminal law and procedure - stay of proceedings - principles - Bill of Rights, Articles 10 and 11.

SUPREME COURT OF HONG KONG

HIGH COURT

CRIMINAL CASE NO. 122 OF 1992

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Date of Hearing: 26-29 January 1993, 1-5, 8-12, 15-17 and 25 February 1993, 10, 17 and 31 March 1993

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RULING

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1. On the 31st March 1993 I ordered a permanent stay of proceedings against Deacon Chiu Te-ken, (D1), the first named defendant on an indictment dated the 15th April 1992. At the same time, I dismissed an application for a stay of proceedings which had been made by the second named defendant, David Chiu Tat-cheung (D2). These are my reasons for granting the stay in respect of D1 and refusing the application of D2.

2. The applicants faced an indictment containing fourteen counts, of which eight were laid against D1 alone and six against D1 and D2 jointly. The first thirteen counts alleged conspiracy with others to commit offences against s. 19 (1) of the Theft Ordinance Cap. 210, in some cases by falsifying documents required for an accounting purpose and in others by producing or making use of documents required for an accounting purpose, knowing them to be false or deceptive in a material particular. Count 14, against D1, alleged that he with others conspired to defraud the Commissioner of Banking by dishonestly milking false representations concerning companies to which the Far East Bank Limited (of which he was the Chairman), had made advances.

3. The applicants relied upon the contention that their trial would at common law constitute an abuse of process by reason of prejudice caused by delay and also upon the ground that they had been deprived of their right to a trial without undue delay in terms of Article 11(2) of the Bill of Rights Ordinance (BOR) and of their right to a fair trial in terms of Article 10, BOR. It-was claimed that during the delay D1 had developed dementia and that as a result he would not be able to make full answer and defence to the charges.

4. To a layman, the use of the word "dementia" suggests that the person being described is mad or crazed. The word is not used in that sense here. It simply means acquired deterioration of intellectual function, which can be manifested in something like increased forgetfulness or absentmindedness at one end of the scale and virtually a vegetable state at the other.

5. The earliest date mentioned in the indictment appeared in count one, which was laid against both applicants. It was alleged that the period of the conspiracy the subject of that count was between the 1st December 1983 and 15th February 1984. Count 11 alleged a conspiracy between both applicants and others on or about the 29th January 1985, the latest date with which D2 was concerned. Count 14, against D1 referred to an alleged conspiracy on 30th November 1985. The story, however, goes back to November 1982 when certain relevant credit facilities were first granted.

6. D1 was arrested on' 31st October 1988 and D2 on 2nd February 1989. Their trial was due to begin on 19th April 1993, about ten and a half years after the first events about which evidence was likely to be given, more than four years and five months after the arrest of D1 and more than four years and two months after the arrest and charge of D2.

7. Estimates of the probable length of the trial varied from three to six months. There were at least 114 witnesses to be called for the prosecution. For the purposes of the committal, 1,667 pages of witness statements were served, together with copies of 3,632 documentary exhibits running to 11,997 pages. For the purposes of the trial, the prosecution produced a core bundle of 1,667 pages of witness statements and another core bundle of 2,301 pages of those copy documentary exhibits to which the prosecution expected to refer during the trial.

8. On the 10th March 1993, 261 pages of additional witness statements and 1,472 pages of further copy exhibits were served by the prosecution, some five weeks before the date on which the trial was due to begin and after closing submissions in this application.

9. The prosecution indicated during the hearing that it intends to apply for Letters of Request for the purpose of taking evidence in Canada from Mr. Raymond Lee, a person regarded as an important witness by prosecution and defence. So even at that very late stage, the applicants did not know whether he would be called or what, if he were called, he might be expected to say.

10. This court has power at common law to stay proceedings in order to prevent an abuse of its process. In delivering the judgment of the Divisional Court in Reg. v. Derby Crown Court ex parte Brooks (1984) 80 Cr.App.R. 164 at page 169, Sir Roger Ormrod said:

"In our judgment, bearing in mind Viscount Dilhorne's warning in Director of Public Prosecutions v. Humphreys [1977] A.C. 1. 26, that this power to stop a prosecution should only he used ‘in most exceptional circumstances’ ... the effect of these cases can be summarised in this way. The power to stop a prosecution arises only when it is an abuse of the process of the court ... It may be an abuse of process if either (a) the prosecution have manipulated or abused the process of the court so as to deprive the defendant of a protection provided by the law or to take unfair advantage of a technicality, or (b) on the balance of probability the defendant has been or will be prejudiced in the preparation or conduct of his defence by delay on the part of the prosecution which is unjustifiable: for example hot due to the complexity of the inquiry and preparation of the prosecution case, or to the action of the defendant and his co-accused, or to genuine difficulty in effecting service … The ultimate objective of this discretionary power is to ensure that there should be a fair trial according to law, which involves fairness both to the defendant and to the prosecution for, as Lord Diplock said in R. v. Sang [1980] A.C. 402, 437:

'the fairness of a trial … is not all one-sided: it requires that those who are undoubtedly guilty should be convicted as well as that those about whose guilt there is any reasonable doubt should be acquitted.'"

11. That passage was cited with approval by the English Court of Appeal: in Attorney General’s Reference (No. 1 of 1990) [1992] 1 WLR 9 but Lord. Lane C.J., in delivering the judgment of the Court of Appeal said:

"stays imposed on the grounds of delay or for any other reason should only be employed in exceptional circumstances. If they were to become a matter of routine, it would be only a short time before the public, understandably, viewed the process with suspicion and mistrust"

He went on to say, a little later:

“In principle, therefore, even when the delay can be said to be unjustifiable, the imposition of a permanent stay should be the exception rather than the rule. Still more rare should be cases where a stay can properly be imposed in the absence of any fault on the part of the complainant or prosecution. 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."

Lord Lane went on to say:

“… no stay should be imposed unless the defendant snows on the balance of probabilities that owing to the delay he will suffer serious prejudice to the extent that no fair trial can be held: in other words, that the continuance of the prosecution amounts to a misuse of the process of the court. In assessing whether there is likely to be prejudice and if so whether it can properly be described as serious, the following matters should be borne in mind: first, the power of the judge at common law, and under the Police and Criminal Evidence Act 1984 to regulate the admissibility of evidence; secondly the trial process itself, which should ensure that all relevant factual issues arising from delay will be placed before the jury as part of the evidence for their consideration, together with the powers of the judge to give appropriate directions to the directions to the jury before they consider their verdict."

12. There is in Hong, Kong no equivalent to the Police and Criminal Evidence Act but the above remarks are otherwise applicable to trials in this jurisdiction and they have been approved by the Judicial Committee of the Privy Council in George Tan Soon Gin v. Judge Cameron and Another [1992] 3 WLR 249 and the recent case of The Attorney General of Hong Kong v. Charles Cheung Wai-bun, Privy Council Appeal No. 56 of 1992. Lord Mustill, in the George Tan case said this:

“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 than 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 it 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.”

13. Mr. Caplan on behalf of D2 asserted that those remarks indicate that an applicant for a stay bears no burden of proof at all. Lord Mustill, however, also said:

“… the district judge was in fact was in fact correct to take into account all the factors together, without reference to any burden of proof other than the heavy burden which always rests on a defendant who seeks a stay on the grounds of delay.”

14. I have no doubt that it is for the applicants for a stay to show on the balance of probabilities that owing to the delay they will suffer serious prejudice to the extent that no fair trial can be held. In the Charles Cheung case it was said that Duffy J. had correctly set out the test as follows:

“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."

15. In Jago v. the District Court of New South Wales and Others [1989] 168 C.I.R. 23, the High Court of Australia considered the circumstances in which the power to stay criminal proceedings may be exercised. Deane J., in his judgment at pp.60 and 61 set out five main heads of relevant circumstances and considerations where the ground of the application is that the effect of delay on the part of the prosecution is that any trial will necessarily be an unfair one. The five heads are:

(i) the length of the delay;

(ii) reasons given by the prosecution to explain or justify the delay;

(iii) the accused’s responsibility for and past attitude to the delay;

(iv) proven or likely prejudice to the accused;

(v) the public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime.

Deane J. said:

“These five heads provide convenient reference points for answering the question whether the effect of a delay in a particular case is such as to bring about a situation where any trial will necessarily be an unfair one from the accused's point of view or a situation where the continuation of proceedings would be so unfairly oppressive that it would constitute an abuse of process. They should not, however, be treated as a code or be permitted to divert attention from the fact that what will ordinarily be involved in answering that question is the formation of a value judgment in the context of the nature and seriousness of the alleged offence and having regard to all other relevant circumstances.”

16. Those remarks have found favour with the Divisional Court in England (see R. v. Crown Court at Norwich, Ex part Belsham (1992) 94 Cr.App.R. 382 at p.393). Deane J. went on to say:

"Consideration of heads (i) (length of delay) and (ii) prosecution’s explanation) will involve account being taken of the time when relevant material was first known to the authorities and whether the charge is a complex or simple one. It will also involve consideration of what is reasonable in the context of the limitations of institutional resources (cf. Mills v. The Queen [1986] 1 SCR at pp. 924-925; Aboud v. Attorney General (N.S.W.) (1987) 10 NSWLR at pp. 683-684). Consideration of head (iv) (prejudice to the accused) will involve account being taken of the availability of other discretionary powers to mitigate the effects of delay. Consideration of head (v) (public interest) will require that account be taken of the fact that the primary responsibility for determining whether criminal proceedings should be maintained lies with the executive and not with the courts …"

17. Every application for it stay must be decided on its own facts. That has several times been stated emphatically by appellate courts and, at page five of the judgment of their Lordships in Charles Cheung, Lord Woolf said:

“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 Defendants'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 facts the, decision on which should not be taken as a precedent in other cases. While there was no prospect of the 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."

18. So far as the common law is concerned, Duffy J. in Charles Cheung, after referring to Jago; Norwich Crown Court Ex parte Belsham; Attorney General’s Reference No. 1 and a number of earlier cases on delay and stay of execution, said:

“It seems to me, therefore, that I should take into account the length of' the delay, the reasons for the delay, the conduct of the parties, prejudice to the Defendant and the public interest as factors to be considered in the determination of this issue. There are the important factors whether I am dealing with a common law abuse or an infringement of rights under the Bill.” (Here he was referring to the BOR.) “I must conduct a balancing exercise in which all of these factors and all other related circumstances are weighed, in order to determine whether in this case a stay of the proceedings should be ordered.”

That is the approach which I have adopted.

19. Turning to the BOR aspect of the case, Duffy J. traced the-history and origin of the BOR and referred to R. v. Sin Yau-ming, (1992) HKCLR 127. In that case, Silke V-P said at page 141,

“While this court is, in effect, required to make new Hong Kong Law relating to the manner of interpretation of the Hong Kong Bill" (the BOR) "and consequentially the tests to be applied to those laws now existing and, when asked, those laws yet to be enacted, we are not without guidance in our task. This can be derived from decisions taken in common law jurisdictions which contain a constitutionally entrenched Bill of Rights. He can also be guided by decisions of the European Court of Human Rights – ‘The European Court' - and the European Human Rights Commission – ‘The Commission’. Further, we can bear in mind the comments and decisions of the United Nations Human Rights Committee - 'The Committee'. I would hold none of these to be binding on us though insofar as they reflect the interpretation of article in the Covenant, and are directly related to Hong Kong legislation, I would consider them as of the greatest assistance and give to them considerable weight.”

Before leaving the report, I note that later  under the same heading Silke V-P said that:

"Overall, it must be borne in mind that the Hong Kong Bill is not a mere, collection of pious platitudes or hopeful aspirations; It is the law."

Duffy J. in Charles Cheung cited the words of La Forest J in Rahey v. The Queen [1987] 33 C.C.C. (3d) 289 at 325 as follows:

"While it is natural and even desirable for Canadian Courts to defer-to American constitutional jurisprudence in seeking to elucidate the meaning of charter guarantees that have counterparts in the United States Constitution, they should be warned of drawing too ready parallel between constitutions born to different countries in different ages, and in very different circumstances."

He also referred to the principle to be derived from Bell v. DPP (1985) 1 AC 937 and Mungroo v. R. (1991) 1 WLR 1351 that “the delay must also be considered in the context of the prevailing economic, social and cultural conditions to be found in the country concerned.”

20. In the light of these passages, Duffy J. took the view, with which I respectfully agree, that "when we come, as I do, to apply an interpretation of Articles which bear upon questions of fairness or the meaning of expressions such as “undue delay”, in relation to the conduct of criminal proceedings, the American, and the Canadian, and the European experiences, while they may assist to some extent in the formulation of principle, cannot be allowed to dictate norms which are largely influenced by local cultural, social and economic factors. "

21. The relevant parts of the Articles of the BOR which fall for consideration are in the following terms:

“10. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rignts and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

11. (2) 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.

….”

Section 6(1) of the BOR refers to remedies for contravention of rights under that ordinance as follows:

“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 and 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 or just in the circumstances."

22. So where an accused person anticipates a breach of his right under Article 11(2)(c) to be tried without undue delay, or has already suffered such an infringement, the court can make such order as it may have the power to make in order to give a remedy. In the present case, it was common ground between the parties and I was satisfied that the only appropriate remedy, if one was required, was a stay. No new remedies are provided by the BOR.

23. Duffy J., reviewing a number of judgments in the United States of America, Canada and the European Court, 'took the view; with which I agree, that courts concerned with constitutional provisions identical to Article 10 and 11 have identified relevant factors similar to those found appropriate by the common law courts. He said, repeating the words he had used in an earlier judgment:

"Not unnaturally, as between the jurisdictions there is a variety of treatments given to those factors but, all in all, very similar considerations are applied to the reasonableness of a delay whether that be in the context of alleged abuse of process or of an alleged infringement of a constitutional right."

Before the BOR was enacted on the 8^th June 1991, the right of an accused person to a fair trial was recognised and protected. Where delay in bringing an accused person to trial produced a situation in which a fair trial was no longer possible, so that the proceedings would be an abuse of process, then a stay of proceedings would be granted. That remains the position but in addition we now have Articles 10 and 11.

24. It may be that it is not strictly correct to say that Article 10 is merely declaratory of the common law right to a fair and public hearing, as Deputy Judge Jones put it in R. v. Egan, High Court Criminal Case No. 280/3 of 1991 (unreported). Its purpose is to incorporate into domestic law the provisions of the International Covenant on Civil and Political Rights (s.2(3) BOR) but in practical terms its effect is to affirm the right and the Hong Kong courts, in construing the word “fair” (and other expressions in the BOR) will follow the guidelines for interpretation set out in R. v. Sin Yau-ming (1992) 1 HKLR 127. In his judgment in that case, Silke, V-P said; at p.141:

“In my judgment, the glass through which we view the interpretation of the Hong Kong Bill is a glass provided by the Covenant. We are no longer guided by the ordinary canons of construction of statutes nor with the dicta of the common law inherent in our training.”

25. It is the respondent's case that Article 11(2)(c) adds nothing to the rights which previously existed at common law. It has been argued on behalf of the applicants that that article confers an independent right which is to be protected on wider grounds than the Common Law provides. See Barker v. Wingo, US Supreme Court Report 33L Ed. 2d 101; Mills v. R. (1986) 26 CCC (3d) 481. The equivalent provisions in the USA and Canada are entrenched constitutional provisions whereas the BOR is not entrenched in the usual sense. The Court of Appeal says that it is sui generis - R. v. Sin Yau-ming at p. 139 - but that we can derive assistance in interpreting it from common law jurisdictions where there are constitutionally entrenched Bills of Rights, as well as from decisions of the European Court of Human Rights, the Human Rights Commission and the comments and decision of the United Nations Human Rights Committee, bearing in mind the aims expressed in the Covenant itself. The common law looks at delay in the context of its effect upon the right to a fair trial. The BOR may be regarded as having conferred a separate and independent right not only to be tried fairly but also, even if the trial itself will be fair, to be tried without undue delay. The remedy, however, for undue delay where a fair trial is possible, is likely to be an order designed to expedite the trial.

26. The Judicial Committee of the Privy Council in Charles Cheung refrained from deciding whether there is a material distinction between the approach at Common Law and under the Bill of Rights, though recognising that it was possible to argue that there was a difference. In the present case, any distinction there may be between rights at common law and those under the BOR made no difference to the result. A decision whether to grant a stay must be the result of a value judgment based on a wide variety of undue delay is not an absolute right: but a violation of that right is an important factor to be considered in an application for a stay if Article 11(2)(c) is to be anything more than a "pious platitude".

27. There has been evidence from D2 of personal and business disadvantages which he and D1 have encountered and which he ascribes to the existence of the charges. I have taken those matters into account as part of the circumstances to be considered when looking at the post-charge delay period in relation to Article 11(2)(c). As Duffy, J. observed in Charles Cheung when speaking of the time when an individual is charged.

“… it is surely at least from that time that a suspect, who eventually goes to trial, begins to feel the pressure and strain that is experienced by all those who face the wait for trial on criminal charges, and his personal, family, social and business circumstances begin to be affected.”

This reflects the view, expressed in Barker v. Wingo and R. v. Mills (supra) that delay affects not only the fairness of the 'trial but also the citizents right to liberty and the security of the person. Lamer J. in Mills referred to "stigmatization of the accused, loss of privacy stress and anxiety resulting from a multitude of factors, including possible disruption of family, social life and work, legal costs, uncertainty as to the outcome and sanction.”

28. As Powell J., said in Barker v. Wingo (supra) at p.118:

“Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests" (i) to prevent oppressive pre-trial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.”

Later, on the same page he said:

“Finally, even if an accused is not incarcerated prior to trial, he is still disadvantaged by restraints cm his liberty and by living under a cloud of anxiety, suspicion, and often hostility."

See also R. v. Askoy 59 C.C.C. (3d), where this topic is discussed.

The case for the applicants was that there had been undue delay, including deliberate delay in the investigation of the case and undue delay after the applicants had been charged, both in completing the investigation and in preparing the case for committal. Complaint was made that the applicants had been led by the commissioner of Banking to believe that if they paid off the loans which had attracted his attention, they would hear no more about the matter. They had accordingly done nothing for a long time to prepare a defence and D2’s diaries for the relevant period had been thrown away, so that he was deprived of an aid to memory about matters long past. It was submitted that prejudice was to be inferred from the long delay between the events the subject of the indictment and the trial. Imemories were bound to be affected. In the interval, important witnesses had died or were missing. In the case of D1 it was alleged that he had suffered actual prejudice in that during the extended delay he had suffered a deterioration in his intellectual function, especially the memory function so that his ability to make full answer and defence was prejudiced. In addition, there would be a risk to his health if he had to undergo the ordeal of a six month trial. It was also suggested that there had been no loss to anyone but the Chiu family and no public scandal; the banking environment had charged since the early 1980s and there was no legal precedent to be set by the trial, so that there was not a strong public interest in the continuation of the proceedings.

29. I now turn to consider the circumstances of this particular case.

30. The nature of the allegations against the applicants and the nature and volume of the evidence are material factors. I have already indicated the number of witnesses who were to be called for the prosecution as well as the volume of their statement and of the documentary exhibits. No facts were admitted under section 65C of the Criminal Procedure Ordinance and the prosecution was to be put to strict proof. In the circumstances, an estimate of six months for the trial did not appear to be excessive.

31. I studied the committal papers and additional evidence in order to assess the extent to which delay was likely to affect the conduct of the trial if it took place between April and October this year.

32. It was the prosecution’s intention to prove by reference to very many documents that money was obtained from the Far East Bank for the benefit of the Chiu family. D1 was chairman of that bank and D2 was a director. It was alleged that in order to conceal the true facts, the applicants with others conspired to create an elaborate system of records which suggested that the money had gone in bona fide transactions to genuine customers of the bank.

33. Much of the prosecution's case: depended upon documents. Mann L.J. said in R. v. Telford Justices ex. p. Badham (1991) 2 QB 78, 90):

“As in the case of delay, we think the onus will normally be on the accused to show that on the balance of probability a fair trial is now impossible . How the accused is to discharge the onus upon him must depend on all the circumstances of the case. Thus, he may find his task more difficult in a case wholly dependent on contemporary and available documents than he would in a case such as is the present which is dependent wholly upon a late complaint and oral testimony. As in the case of delay, we also think that where the lapse of time is a long one, it may be inferred that a fair trial is no longer possible. Whether it is legitimate to draw the inference will depend on the circumstances of the case. Thus it may not readily be drawn where the prosecution is wholly dependent on available documents.”

34. In R. v. Bow Street Stipendiary Magistrate ex. p. DPP (transcript Co/1454/91: 24th January 1992) at p. 14 Neill I,.J. said:

"In a case involving delay, the court will consider the reasons for the delay and the responsibility, if any, of either the prosecution or the defence for the delay. The court will also consider the issues which are likely to arise at the hearing and the nature of the evidence which is likely to be relevant. This is a case which depends very largely on documentary evidence may be regarded very differently from one where witnesses will have to try to recollect some swiftly moving event which passed before their eyes years ago. "

35. A great deal of the prosecution's case against the applicants depended upon documents but oral evidence would have been essential as to the roles of the alleged conspirators and as to conversations upon which the prosecution would seek to rely.

36. I must now look at the various factors which fall to be considered in a case where the applicant relies upon delay.

A. The Length of the Delay

37. It was in November 1982 when the first “offering ticket” was signed in relation to one of the relevant loan facilities.

38. The period covered by the indictment is between the 1st December 1983 and the 30th November 1985. It was in early 1985 that the problem loans came to light in a routine inspection of the bank by an officer of the Commissioner of Banking and discussions began with the Chius.

39. It was only on the 13th January 1986 that the Commissioner of Banking officially referred the matter to the Attorney General's Chambers. As a result of that referral, an investigation by the Independent Commission Against Corruption (ICAC) began on the 29th January 1986. Two years and nine months after that, on the 31^st October 1988, D1 was charged. D2 was interview and arrested on the 2nd February 1989. He was charged on the 9th February.

40. Fourteen a half months elapsed between 31st October 1988 when D1 was charged and the 17th January 1990, the return date fixed for a committal hearing in the magistrates’ court.

41. There then began a series of hearings relating to an application for a stay, which led to the High Court, the Court of Appeal, the Privy Council and back to the magistrates’ court by the 6^th January 1992. As a result of the application and the proceedings which flowed from it, the committal for trial was delayed by over two years. It finally took place on the 4th of April 1992. An indictment was filed on the 15th April 1992 and the trial was eventually set down for the 19th of April 1993.

42. There was much discussion as to the selection of appropriate dates to represent the beginning and end of the delay period. It was common ground that for the purposes of Article 11(2) the period begins with the 'charge', which word has been defined in various ways in different jurisdictions.

43. Duffy J. in Charles Cheung, after reviewing Canadian and European decisions, took the view that the word ‘charge’ “should relate to the time at which an individual is officially advised by a competent authority that he is suspected of having committed a criminal offence, for it is surely at least from that time that a suspect, who eventually goes to trial, begins to feel the pressure and strain that is experienced by all who face the wait for trial on criminal charges, and his personal, family, social and business circumstances begin to be affected.”

44. It was common ground that post-charge delay is to be viewed against the background of pre-charge delay. As Sopinka J. said in R. v. Morin 71 CCC (3d) at p.15:

Pre-charge delay may in certain circumstances have an influence on the overall determination as to whether post-charge delay is unreasonable but of itself is it not counted in determining the length of the delay."

45. Lamer, J. in Mills v. R. (1986) 26 CCC (3d) 481 at p. 558 said:

“Pre-charge delay is relevant, however, to the right to a fair trial protected by sections 7 and 11(d) of the Charter ... Pre-charge delay is relevant under sections 7 and 11(d) because it is not the length of the delay which matters but rather the effect of the delay upon the fairness of the trial. Pre-charge delay is as relevant is any other form of pre-charge or post-charge conduct which has a: bearing on the fairness of the trial.”

46. In considering Article 11 (2), I was looking at a period of almost four years and six months between the formal charging of D1 and the beginning of his trial but against the background of some six years having elapsed from November 1982, when the story may be said to begin, to the 31st October 1988 when D1 was charged. The period in relation to D2 is overall the same, save that he was arrested on the 2nd February 1989 and formally charged on the 9^th. Mr. Scrivener would say that the post-charge period might well be longer, if we were to take the date of the execution of search warrants on the 31st May 1988 as the date when D1 was officially advised by a competent authority that he was suspected of having committed a criminal offence. I have taken the charge dates as being 31st October 1988 and 9th February 1989.

47. Bearing in mind my duty to look at all the circumstances together, I considered that there was little if anything to be gained by trying to express the problem in terms of a mathematical formula. My task was to look at matters in the round and form a value judgment.

48. I have referred to the date on which the trial was scheduled to begin, but I bore in mind that it was estimated to last six months and it must be a fair trial throughout, so that the period up to the end of the trial must be considered. It: would only have been at a late stage, if at all, that the applicants might have found themselves in the witness box. If D1 were to have given evidence in October 1993, it would have been almost eleven years after the beginning of the story and five years after the date upon which he was charged.

49. There was an argument as to whether certain periods of delay should be ascribed to the actions of the applicants and, if so, whether such periods should be disregarded for the purpose of assessing the length of the delay. I shall come to that matter in due course.

B. The Reasons given by the prosecution to explain or justify the delay.

50. Mr. Pethes accepted that the period of almost four years from the 29th January 1986 to the 17th January 1990 is the responsibility of the prosecution. He said that the period falls into two parts:

(a) Two years and nine months from the start of the ICAC investigation up to the charging of D1 on the 31st October 1988 and

(b) the 14½ months of continuing investigation between the charging of D1 and the return day of 17th January 1990.

51. However, the Commissioner of Banking became aware of irregularities and apparent breaches of the Banking Ordinance in early 1985. He chose for his own reasons not to make a formal reference to the Attorney General until the 13th January 1986. Had he brought in the police or the ICAC at an earlier stage, it is reasonable to assume that the investigation would have been completed sooner.

52. Mr. Pethes submitted that the two periods of delay (a) and (b) above, must be looked at in the context of how the investigation began, its size and complexity, and the resources available to the ICAC. So far as resources are concerned, it was pointed out on behalf of D1 that there was no evidence on the matter and accordingly, a lack of resources was not something upon which the prosecution could rely.

How the ICAC investigation began

53. A letter dated the 13th January 1986, to the Attorney General's Chambers from the Commissioner of Banking, signed on his behalf by R.H. Farrant, begins as follows:

"Our investigations into Far East Bank last year identified a number of transactions of doubtful legality. We think they seem to merit further investigation with a view to possible prosecutions under the Banking Ordinance.”

54. The letter refers to various matters including some transactions, the subject of the present indictment and it states:

"All of these transactions have been summarized in the enclosed reports by Touche Ross & Co. prepared for shareholders and drawing on work done by our examiners and former auditors, Price Waterhouse; and Price Waterhouse, prepared for us. There are many other working papers of our examiners available if you wish."

55. The final paragraph reads:

"At present the Chius are in the final stages of negotiation with third parties to sell a substantial stake of the bank, using the proceeds to settle the debts described above. These should be completed by the end of January. We would not wish these negotiations prejudiced by adverse publicity, although the purchasers are aware that the police investigation of possible illegalities are (sic) likely and prosecution of the Chius and perhaps other senior staff could ensue."

56. It was established by the evidence of Mr. Fell, who was Commissioner of Banking at the time, and by the evidence of Mr. Swift, the ICAC officer who had charge of the investigation, that the Commissioner of Banking recommended a covert investigation. This was because of the ‘high profile’ of the Chiu family and because if the investigation became public knowledge the Far East Bank was likely to collapse, to the detriment of its depositors and shareholders, and there was potential damage to the Far East Group of companies controlled by the Chius. Loans of about $350,000,000.00 to the 'special companies' were secured by shares in the Far East group of companies. If the loans were not repaid, the companies and the bank would collapse. In the opinion of Mr. Robert Fell, the banking system of Hong Kong, which had recently been shaken by other collapses, I could not stand another one.

57. When he gave evidence, Mr. Fell put the matter in historical perspective. There had been a crash in the property market in 1983 which had impinged on the banking system and there had been a number of failures of deposit-taking banks. He said that in 1983 there was almost a crisis in the financial sector. Two of the banks which collapsed were taken into government ownership. After that, there were indications from the Financial Secretary and a senior member of the Legislative Council that it was unlikely that there would be any more such rescues. The policy was to try to keep banks afloat and to find new owners for them.

58. When he heard of the loans to the $2 companies by the Far East Bank, his prime concern was to get them regularised. It is common ground that loans of $350 million by the bank which had about $160 million paid up capital, if they were connected, indicated a massive breach of the Banking Ordinance.

59. It is part of the prosecution's case that it was discovered that of the loans to the nine alleged Indonesian customers, three exceeded the 25% limit of the Far East Bank's paid up capital and reserves imposed by section 23 of the Banking Ordinance then in force. In addition, the prosecution alleges that a loan to a wholly owned subsidiary of the bank exceeded the 10% limit imposed by section 24.

60. The prescribed penalty for a director or manager of a bank which contravened section 23 or section 24 was, upon conviction on indictment, a fine of $200, 000.00 and imprisonment for two years and, in the case of a continuing offence, a further fine of $10,000.00 for every day during which the offence continued.

61. Mr. Fell said in evidence:

“… obviously our first business was to encourage the Chius to get the bank on its feet again. Now if the Chius had been threatened immediately with legal action, their reaction quite clearly would have been quite different. They would have immediately taken legal advice, stopped presumably the payment of the loans. We would have had a collapsed bank.” …. “We couldn’t stand a failed bank at that time” …. “It’s very, very difficult to get that point across at this point of time. But the point we were concerned with then, from that period roughly ‘83, ‘85 was very much the financial stability of Hong Kong that had started with the property crash, just coming at the time of the Chinese negotiations starting.”

62. The Chius agreed to repay the outstanding loans. There was a repayment schedule drawn up by Dick Chiu in May 1985. It was eventually embodied in a deed which was executed a year later. Mr. Fell made it clear to the Attorney General’s Chamber and to the ICAC that, as he put it:

“If obviously prosecution and the sort of publicity of that sort of investigation had come at that stage, it would have meant the complete failure of what we were trying to do. Two things would have happened. First of all; any possible purchasers would have obviously cried off; and secondly we wouldn't why should the Chius then ~av.e1' honoured their agreement if they were immediately being prosecuted. In other words, the thing would have come to a halt and we would have been back to square one again. It was a failed bank on our hands.”

63. The Attorney General and the ICAC in accordance with Mr. Fell's recommendation took the view that there should be a covert investigation. This limitation on the investiqators undoubtedly caused delay.

64. The covert approach, as Mr. Pethes acknowledged, slowed down the investigation from the outset throughout 1986 and in 1987. Not only was Mr. Fell recommending caution but so also was Mr. Louvet of IBI Asia, which took over the chius’ interest in the Far East Bank. He wanted the bank to "get back on its feet after the takeover” and it is clear from Mr. Fell's evidence that Mr. Louvet was given certain indications that there would be cooperation from the Commissioner of Banking if IBI did take over, and that no action would be taken against the bank in relation to the loans.

65. A point was made by the applicants that the investigation only became overt at a time when the repayments scheduled in the Deed of Repayment had nearly all been made and D1 was only arrested after all of them had been made. Mr. Pethes said that there was no evidence of any connection between the two matters and that the Chius had already put in fresh security to secure the loans so that even if the schedule had not been met, the security could have been enforced. I consider that it would be naive, in the light of the remarks of Mr. Fell which I have quoted above, to suppose that there was no connection. Mr. Swift agreed in evidence that when he interviewed D1 he indicated that he was aware of the repayments and it so appears from page 11 of the record of interview of the 31st October 1988.

66. The repayment schedule shows that the final payment was made on the 31^st August 1988, two months before D1 was interviewed and arrested. Decisions were being made at a level higher than that of Mr. Swift and they were clearly informed by “policy” considerations.

67. Another reason advanced by the respondent for the delay in the investigation was that the al1eged beneficiaries of questioned loans were allegedly Indonesians residing in Indonesia, so that it was not easy to make enquiries.

68. The obtaining of documentary evidence was hampered and slowed down by the covert approach. By June 1987, Mr. Swift wanted to carry out searches for documents, but a suggestion by the Attorney General's Chambers that there be a covert fund tracing exercise first was accepted by Mr. Swift's superior in ICAC. Though he did not think it necessary at the time, Mr. Swift now considers that the decision to trace the funds was correct. Perhaps it was but no good reason has been shown for delaying at that time the searches for documents which must, have speeded up the fund tracing process.

69. It is said by Mr. Pethes, that the fund tracing was hampered by the fact that the bank had only one microfiche reading machine. I have no doubt that if the accountants and ICAC had been able to make an overt examination of the bank’s records, the investigation must have moved on much more swiftly. It is understandable that Mr. Louvet was in no hurry to supply evidence which might eventually result in a prosecution connected with the bank he was trying to run a prosecution which he did not want. When Mr. Swift pressed him, he said that he would speak to someone high in government and Mr. Swift took him to have Mr. Fell in mind.

70. Mr. Swift thought he would be able to do his searches in October 1987, but again they had to be put off because in that month there was a stock market collapse and it was felt that searches at that time could have had a disastrous effect on the public companies controlled by the Chius. Also, the fund tracing was taking longer than had been expected.

71. Mr. Pethes pointed out that there never was any intention to search the premises of the Far East Bank. When searches did take place, they were of five places where papers relating to the Far East Group of companies were held. Mr. Swift said in evidence that it he had searched the bank he would not have known what he was looking for and a search would have closed down the bank. It seems to me, however, that an overt examination of the relevant records by ICAC and the accountants, with the cooperation of the bank must have speeded up the fund tracing exercise. I see no reason to assume that the bank would have needed to shut down or that the management of the bank would have refused to help ICAC and Ernst and Whinney to find what they were looking for.

72. On the 31^st May 1988, two years and four months after the start of the ICAC investigation, searches were carried out. 20 filing cabinets  documents were sized. The investigation, now overt, proceeded more rapidly and it speeded up further after the arrest of D1 on the 31st October.

73. D2 in evidence mentioned that in 1987 following the stock market crash, the Chius injected money into the Far East Bank. There is no evidence that Mr. Swift knew that or that it had any effect on decisions made in relation to the ICAC investigation.

74. The progress of' the fund tracing exercise was slowed down partly because Ernst and Whinney had been instructed not to contact Price Waterhouse or Touche Ross. Mr. Grimsdick’s evidence was that this instruction was given in order to preserve confidentiality, i.e. to restrict the knowledge that a fund tracing exercise was going on to a small group of people. Mr. Pethes says that Price Waterhouse had not done any fund tracing. Nevertheless, what they did have, as auditors, was knowledge of the procedures of the Far East Bank and I have no doubt that if Ernst and Whinney had been able to consult them, much time and effort could have been saved, especially if there had been free and open access to the bank’s records. Price Waterhouse knew about the questioned loans and a partner was at meetings with Mr. Fell and the Chius about them. Had he been consulted he must have been able to help Ernst and Whinney.

75. In April 1988, Ernst and Whinney had largely completed their fund tracing and an interim report was rendered. The report indicated that the funds had gone to or for the benefit of the Chiu family. That led to the searches of premises and the seizing of documents in May. A detailed report was submitted by Ernst and Whinney on the 5th October 1998. That marked the end of their fund tracing exercise. D1 was arrested within the month.

76. According to the evidence, Ernst and Whinney had discovered that on one day in January 1984, a sum of $40.9 million which had come from the Far East Bank through the special companies to Spur Investments Limited was used for the purchase by Far East International Limited (FEIL), a company of the Far East Group, to purchase ATV shares. D1 had signed on behalf of FEIL the agreement to purchase those shares. The deal gave him control of ATV of which he became chairman.

77. When he was interviewed by Mr. Swift in October 1988, D1 said that he bought the ATV shares with the proceeds of a loan from the Bank of Communications. The researches of Ernst and Whinney suggested that, though the Bank of Communications had made a loan for that purpose, the money had been diverted to other purposes and was not used to buy the ATV shares.

78. After the searches were completed in May 1988, the investigation ceased to be covert. D1 was still the chairman of the bank. According to Mr. Grimsdick of Ernst and Whinney, his staff worked alongside the bank staff from February 1988, using their own microfiche reader.

79. The arrest of D1 on the 31^st October 1988 accelerated the investigation. According to Mr. Swift that investigation would have been of the same length overall whether D1 had been arrested earlier or later.

80. Some idea of the scale of the investigations generally being carried out may be gained from the fact that the staff of Ernst and Whinney alone worked over 19,000 hours on them. Ernst and Whinney may properly be regarded as having been part of the investigation team and it is unrealistic to look simply at what ICAC officers were doing if the effort put into the investigation is to be assessed.

81. The arrest of D2 was delayed because Mr. Swift’s discreet attempts to arrange an interview during that period, from November 1988 to February 1989, were unsuccessful. It is not suggested by Mr. Pethes that D2 was deliberately delaying. Mr. Swift spoke to solicitors and did not contact D2 directly, though there was nothing to prevent him from doing so.

The attempts to extradite Tammie TAM

82. It is the prosecution’s case that Tammie Tam is an important figure in the alleged conspiracies. The applicant say that the course of the proceedings against the applicants was greatly delayed by reason of the fact that the prosecution obtained adjournments of the committal proceedings in the hope that they could have Tammie Tam extradited from Fiji, whither she had gone from Hong Kong in July 1988.

83. According to the respondent, the evidence of Mr. Swift indicates that a delay to the investigation of only six to eight weeks was caused by the need to prepare evidence for the extradition application. That, may be so, but the burden of the applicant’s complaint is that there was a long delay in the committal proceedings and of that I have no doubt.

84. According to the magistrate’s note, the prosecution applied on the 10th February 1989 for a remand of four months. Crown counsel, Mr. Kripas spoke of the extradition, indicating that an extradition from Fiji in April was expected and that the co-conspirator would not be back (in Hong Kong) until mid-April. Concern was then expressed by counsel for D1 at the time it was taking the Crown to bring the matter to trial. That was four years ago. Crown Counsel indicated the scale of the investigation, mentioned overseas enquiries and spoke of letters of request in respect of a key witness overseas (probably Raymond Lee, to whom I shall in due course refer). He said that the investigations were proceeding at a very satisfactory rate, but mentioned that the resources of the Crown were diluted in connection with extradition.

85. In a letter dated 15th March 1989 to D1’s solicitors, Mr. Kripas said:

“The preparation of the Crown’s case against your client has been interrupted for many months due to the need to prepare the extradition of Tammy Tam from Fiji.”

86. Later in the same letter he says:

"We should also place on record that as of June 1989 your client has been under arrested (sic) and charged for only 8 months and not 12 as you claim. Given that 6 of those months have been dedicated to the preparation and hearing of the extradition, this case will, if ready for a return date then, have been prepared in astonishingly quick time."

87. The return date to which Mr. Kripas referred was the 13th June 1989.

88. That date came. The prosecution sought a further adjournment until August and Mr. Reid who appeared for the prosecution said:

“The preparation of the case papers has been delayed by extradition proceedings of named co-defendant, a co-conspirator fighting extradition from Fiji … Great time and effort gone into this case expended on Fiji extradition. That case due to be heard 25/26 July in Fiji.”

89. Mr. Reid said that he appreciated the need for the Crown to get on and finalise the committal papers and charges and he added:

“Delay partly reflexive of complexity of case, compounded by the enormous amount of time and effort in Fiji extradition.”

90. Counsel for the defence described the situation as oppressive, pointing out that after 8 months following his arrest, D1 still only faced holding charges. He said that when charges were not formally laid, it was impossible for the defendant to focus meaningfully on many areas. In the meantime, he said, lay witnesses became unavailable. The statement by the Crown in a letter in March, that many witnesses had emigrated, was mentioned. Counsel said that any further application for an adjournment would be strenuously opposed.

91. So three years and nine months ago the prosecution was left in no doubt that the defence was alleging that its conduct was oppressive.

92. The next appearance before magistrate was on the 29th August 1989. The prosecution, which by then had served a large number of documents on the defence, produced a schedule of 14 charges and asked for a remand to the 17th January 1990 for a return date. Counsel appearing for the prosecution said that the charges could be put and the cases against D1 and D2 consolidated on the 17th January 1990. He said that the papers were not yet in committal form and he undertook that the papers would all be in order - in committal form - by the end of November 1989.

93. It is a serious matter to give an undertaking in the course of an application for an adjournment. The undertaking was not honoured. The papers for committal were in the hands of the defence by January 1990. A great many documents together with the final charges had been delivered to the defence in August 1989 and more had been supplied in September.

94. There is no doubt that the prosecution faced an enormous task in analyzing thousands of documents and taking statements from many witnesses. It is clear that resources were substantially diverted to deal with the attempt at extradition. Unfortunately, due to an error on the part of the Crown, the first set of extradition proceedings proved abortive and the Crown had to start all over again. To this day the matter is still being fought out and there is no knowing when, if ever, Tammie Tam will be brought to this jurisdiction.

95. In September 1990, Mr Martin LEE Q.C. appearing for the prosecution in the Magistrates’ Court, said this:

“It is not the prosecution intention further to adjourn this case to obtain a joint trial with Tammy Tam”

The interviewing of witnesses

96. The schedule of witnesses in the defence bundle of exhibits shows that statements were taken from four witnesses up to the 6th April 1988. Between July and October, when D1 was charged, statements were taken from a further 67. Mr. Scrivener for D1 suggested that only three or four of those 67 gave any evidence other than that they had been nominees in relation to the special companies, so that not much had been done by way of statement taking before D1’s arrest. Mr. Swift, however, says that 16 of the 67 spoke of recruiting people and signing documents. 13 were involved in the letter of credit transactions. In addition, Mr. Cheng Yat Ching, for example, spoke of being recruited by D2 to be a nominee director and to sign documents on behalf of one of the applicants for letters of credit. Other witnesses gave statements relating to hire purchase matters.

97. An important prosecution witness is Thomas Chu, he is allegedly an accomplice and has been given an immunity Mr. Chu is a convicted criminal who has recently served a term of imprisonment for an offence other than those charged in the indictment.

C.    The responsibility of the accused for and their past attitude to the delay.

98. Mr. Pethes says that from the 17th January 1990 the applicants have caused delays totalling two and a half years.

99. The first period is the three months from 17th January to 17th April 1990. The defence solicitors wrote to the Attorney General's Chambers asking the prosecution to agree to an adjournment of the return date from the 17th January to 17th April, when leading counsel for the applicants would be available. The prosecution agreed and the return date was refixed for the 17^th April 1990. Mr. Pethes says that notwithstanding the agreement the delay must be laid at the door of the defence because they made the request. It seems to me that in the circumstances the invitation to agree to an adjournment was not unreasonable. More papers were served on the defence after the 17th January and it may well be that the prosecution would had not. I will not hold that three month period against the defendants.

100. Next, according to Mr. Pethes, came a delay of 21 months which flowed from the application made to a magistrate on the 18th April 1990 for a stay of proceedings. It was not until the 6^th January 1992 that proceedings resulting from that application were completed, the applicants having failed to obtain a stay. The events which occurred during those 21 months are summarised in the helpful chronology provided by the respondent and I set out below an extract from that chronology. It will be seen that the applicants did not drag their feet.

Chronology

101. Mr. Pethes makes the observation that there could hardly be a more technical point to take thal1 the questioning of the validity of a magistrate’s appointment. He says that if the applicants had succeeded, then the only result would have been that Mr. Line would have been re-appointed and the stay application would have been heard again by him.

102. A High Court Judge was rightly or wrongly, persuaded that the appointment was invalid so the point was clearly arguable. I doubt whether the magistrate, if he had needed to be re-appointed, would have heard the stay application again. It would probably have been heard de novo by another magistrate who might have taken a different view.

103. At any rate, Mr. Pethes says that the applicants’ conduct is not consistent with a desire for an early trial, whatever protestations may have been made. He points out that the applicants could have taken a paper committal in January 1990 and the trial might well have commenced before the end of that year even had there been an application in the High Court for a stay. In 1990, he says, there was no suggestion of any medical prejudice. But as will be seen from the medical history which I shall later set out, D1 was a very sick man in 1990.

104. As an alternative, Mr. Pethes suggests, the applicants could have taken a paper committal after the magistrate's refusal of a stay on the 17th October 1990. They could have applied thereafter for a stay in the High Court.

105. The next period of delay which Mr. Pethes attributes to the applicants is the three months period from 12th January 1992 to 4th April 1992. That was due to the fact that the applicants indicated that they wanted a preliminary enquiry. Yet on the 4th April, the date fixed for the preliminary enquiry they elected to have a paper committal. That is so, but the applications even then did not have to accept a paper committal. Had they been bent on delay they could have insisted on a full committal hearing.

106. So finally, on the 4th April 1992, more than two years after the original return day, there was a paper committal.

107. On the 15th April 1992 the indictment was filed in the High Court, and in May a Master set the trial down to begin on the 8th February 1993, with a pre-trial review fixed for the 14th October 1992 to al1ow room for any application for a stay.

108. Three months later, at the end of August 1992, the applicants, despite opposition from the prosecution, obtained an order from another Master refixing the pre-trial review for October 1993 and the trial for the 17th January 1994. The actions of the applicants did not suggest a desire for a speedy trial.

109. Upon an application by the prosecution to the Chief Justice sitting as a listing judge, the trial was refixed for the 19th April 1993, which was still ten weeks later than the date originally fixed. Mr. Pethes says that the extra delay, which is ten weeks, though he called it three months, is attributable to be conduct of the defendants. That is so.

100. In this connection Mr. Pethes was relying on the Canadian case of R. v. Morin (1992) 12 CR (4th). At page 17, under the heading “(b) Actions of the accused”, Sopinka J.

"This aspect of the reasons for delay should not be read as putting the 'blame' on the accused for certain portions of delay. There is no necessity to impute improper motives to the accused in considering this factor. Included under this heading are all actions taken by the accused which way have caused delay. In this section I am concerned with actions of the accused which are voluntarily undertaken. Actions which could be included in this category include change of venue motions, attacks on wiretap packets, adjournments which do not amount to waiver, attacks on search warrants, etc. I do not wish to be interpreted as advocating that the accused sacrifice all preliminary procedures and strategy, but simply point out that if the accused chooses to take such action, this will be taken into account in determining what length of delay is reasonable.”

111. Sopinka J. was there referring to the Canadian equivalent of our Article 11(2) and in relation to the ten week delay respectfully adopt the view he expressed. At p.23 of his judgment, Sopinka J. quotes Cory J. in Askov (1990) 59 CCC (3d) 449 who said:

“the s. 11(b) right is one which can often be transformed from a protective shield to an offensive weapon in the hands of the accused.”

He goes on to say:

“Action or non-action by the accused which is inconsistent with a desire for a timely trial is something that the court must consider.”

and (at p.24)

“Nonetheless, in taking into account inaction by the accused, the court must be careful not to subvert the principle that there is no legal obligation on the accused to assert the right. Inaction may, however, be relevant in assessing the degree of prejudice, if any, that an accused has suffered as a result of delay.”

Later:

“The fact that the accused sought an early trial date will also be relevant. Evidence may also be adduced to show that delay has prejudiced the accused's ability to make full answer and defence.

Conversely, the prosecution may establish by evidence that the accused is in the majority group who do not want an early trial and that the delay benefited rather than prejudiced the accused”

112. There were actions on the part of the prosecution which considerably extended the delay in getting the matter back before the magistrate. At the end of the day, though they had failed to obtain a stay of proceedings, the applicants returned to the magistrate with the benefit of an undertaking given by the Crown to the Privy Council not to rely upon decisions adverse to the applicants which had been made by Mr. Line and Kaplan .J. An accused person is fully entitled to apply to a magistrate for a stay of proceedings. The actions of the applicants between 18th April 1990 and 6th January 1992 were bona fide and much of that period resulted from systemic delays and actions on the part of the Crown.

113. Mr. Pethes maintained that there was a distinction to be drawn between genuinely seeking an early trial date and raising complaints in correspondence which are not followed up by action. He said that the applicants fell into “the majority group who do not want an early trial.” Having regard to the fact that the applicants attempted last year to put off the trial until 1994, I agree. Not unnaturally, the applicants did not want a trial at all.

D.    Proven or likely prejudice to the accused Unavailable or missing witnesses

Raymond LEE

114. The applicants pointed out that Raymond Lee, who is regarded by the prosecution as an important witness, is in Canada and cannot be compelled to come to Hong Kong to give evidence. Nobody knows what he would say if he did appear at the trial. The only statement taken from him is one dated the 21st January 1993 when he was on a visit to Hong Kong. All he says in that statement is that he does not have time to make a statement about this case, but that he is willing to make a further statement at some future time in Canada. Though there was talk of taking steps to obtain evidence from him in Canada, nothing had been done, though the trial was scheduled to take place on the 19th of April. This was a very unsatisfactory state of affairs. The applicants did not know where they stood.

115. Mr. Pethes said that the applicants had failed to show how the evidence of Raymond Lee would assist them to rebut the prosecution’s case. According to the statement of Thomas Chu, Mr. Lee was not present with D1 when offering tickets were signed or renewed in 1983, which suggests that he cannot give direct evidence of conversations with or contacts with the applicants. The respondent’s position is that although the prosecution wishes to call him to testify as to his preparation of the documents, he is not so crucial a witness as he may at first have appeared to be. Mr. Swift still speaks in. terms of obtaining evidence from Mr. Lee in Canada, but in view of the inaction to date, I wonder whether the respondents do seriously believe that Raymond Lee is willing to cooperate with the prosecution notwithstanding what he said in his brief statement.

Richard HO

116. Attempts by the prosecution to contact him have not succeeded. The respondent’s case is that if he were traced the applicants have not shown how his evidence would assist them in any way or about the prosecution’s case.

Cheng

117. Though his name has come up in the course of the investigation, it is unclear whether Cheng exists or, if he does, whether he would be able to make any relevant contribution.

CHIANG Man-kwai

118. Mr. Chiang died on the 18th January 1989. It appears that he was the officer in charge of the Bank of China Hong Kong and Macau Office in connection with the approval of a loan of $50 million by the Bank of Communications to Spur, the loan being guaranteed by D1 who, according to the respondent, owned or controlled Spur. The respondent concedes that the documentation relating to the loan indicates that the purpose of it was the purchase of ATV shares. However, it is the prosecution case that the loan was never used for that purpose notwithstanding that D1 allegedly said at his ICAC interview that it was.

119. It is alleged by the prosecution that Mr. Grimsdick’s researches show that the loan from the Bank of Communications was used for other purposes on the 31st December 1933 and that it was other money, lent to the ‘special companies’ which was used on the 17th January 1984 to buy the ATV shares.

WONG Sau-man

120. Mr. Wong is said to have negotiated the $50 million loan in his capacity as general manager of the Bank of Communications. His Whereabouts are unknown but there is nothing to indicate that he could say anything other than that the purpose of the loan was stated to be the purchase of ATV shares. That is conceded by the prosecution.

121. I was not satisfied by the evidence that either applicant would be seriously prejudiced in his defence by the absence of Raymond Lee, Richard Ho, Cheng (if he exists), Chiang Man-kwai or Wong Sau-man.

Lost Diaries

122. There is unchallenged evidence, that before D2 became aware of the possibility that hp. might be prosecuted, his secretary without instructions threw away his diaries for the period 1982-1985. D2 said that he had been in the habit of recording in the diaries not only personal details but also business matters connected with Far East Consortium Limited, Far East Bank and Far East Hotel and Entertainment Limited. He has lost, according to him, what might have been useful aids to recollection. D2 has not given particulars of how the lost diaries might have assisted him to rebut the prosecution’s case, but clearly so far as dates and events are concerned, they might have been aids to recollection.

123. The matter of the diaries for what it was worth, had to go into D2’s side of the scales.

Breach of Legitimate Expectation

124. D2 said that he had the impression when dealing with the Commissioner of Banking that if his family saw to it that the loans outstanding to the Far East Bank were made good, that would be an "end of the matter".

125. The respondent submitted that D2 was here relying on a concept of legitimate expectation which "has no place in the criminal law" - R. v. SOO Fat-ho (1992) 2 HKLR 114. The Court of Appeal in that case was considering and disposing of a suggestion that if the authorities over a period rafrained from prosecuting the perpetrator of a certain type of crime, then such person, who committed that type of crime thereafter, was entitled to assume that he would not be prosecuted. This is not what D2 is saying. His case is that he was led by the conduct of the Commissioner of Banking to believe that he need not fear that any action would be taken against him in connection with the loans, if they were repaid. He says that, as a result, he did not think of preparing to defend himself against any potential prosecution until at a very late stage he realized that he was to be prosecuted. This factor, according to him, has prejudiced him in the preparation of his defence.

126. Mr. Pethes asserted that there is no evidence of any promises having been made to D2. D2 does not say that there were any promises. Mr. Pethes said that the Commissioner of Banking had no intention of refraining from referring the matter to the Attorney General’s Chambers even if the loans were repaid. D2’s point was that he was never told that and indeed that he received a contrary impression. D1 adopted the argument.

127. Mr. Fell said in evidence that it was his firm recollection that the question of not recommending prosecutions under the Banking Ordinance was not discussed at all. He was asked by Mr. Kaplan in relation to D2:

“… would it be fair or unfair to say that an impression may have been created that if this payment package was honoured, that would be the end of the matter?”

His answer was:

“That would have, I think – it’s very difficult obviously, to put yourself in someone else's shoes, but if I was sitting in David CHIU’s seat, I might well have thought that - I should repea1, if you like, that he came very late into the deal, and he was there supervising and dealing quite honourably with the repayment package.”

128. Mr. Kaplan later asked this question:

“Q. Did you hold any views at about the time when you were dealing with David CHIU as to whether if the monies were paid in accordance with the payment package the matter should proceed to the criminal courts?”

129. Mr. Fell gave a long answer which gives a clear indication of how he saw the situation at the time and it permits the inference that his view would have influenced his manner towards the CHIUS in the discussions which took place. This is what he said:

“We had a series of cases that you mentioned earlier starting with the Hang Lung Bank and running through OTB and so on. Now there - the cheque-kiting operation in citibank and so on. These were clearly criminal cases and quite rightly there had been criminal prosecutions following very swiftly indeed after the events and they had been dealt with in the courts. There was nothing in the Far East Case of that nature. Here was a case where there had been loans to a consortium, to a business operation which there was clearly a chance of repayment if it was properly handled. It was clearly in contravention of the Banking Ordinance. There shouldn’t have been that sort of action. But nevertheless, it wasn't - if as a layman I could take a view of a degree of criminality - and probably that is wrong to take a view of a degree of criminality; it wasn't in the same school; it wasn't in the same league as these other cases – this was a case of a large group that was going through a difficult period of balancing its assets to keep aflcat. You must remember there were far bigger stakes than the Far East Bank here. It was the Far East Consortium that was a concern to Hong Kong at that time and therefore they were, if you like, dealing with their assets to try to keep themselves going through a difficult period. But having got through the period, there was no intention of not paying their debts back to the Bank as a normal customer, so it wasn’t in the same sense as the Ka Wah, the OTB. If I might be allowed a degree of criminality, in my view it wasn't in that league at all. It was a contravention of the Banking Ordinance quite clearly, and something that would have been dealt with in my book in that sort or league; but again that was really a matter for the Attorney General of course.”

130. That answer is one which I needed to bear in mind when I came to consider the public interest factor, but it is important to remember that at the material time the only possible offences the Commissioner of Banking was concerned with were breaches of the Banking Ordinance, with which the applicants have not to this day been charged. There was no mention of possible offences relating to false accounting. Mr. Fell could hardly be taken to be indicating that no action would be taken about offences as yet undiscovered. If the applicants knew the full facts, they may well have entertained a self generated hope that by cooperating they would be able to head off further enquiries which might reveal the full extent of the wrong doing. I cannot assume that they did know the full facts.

131. Mr. Fell agreed that he expressed his views in meetings with “other authorities” and he said:

“… I was successful … in saying and getting the position accepted that there shouldn’t be any thought of investigation until we had completed our operations. In other words, it was accepted that the policy of getting the bank stable was accepted.”

132. I note that at none of the meetings with the Commissioner of Banking did the applicants feel it necessary to have their lawyers present. I note also that after the takeover of the Far East Bank by IBI Mr. Fell raised no objection to D1 continuing as Chairman: quite the contrary. That might have led the applicants to hope that that really was “the end of the matter”.

133. Mr. Pethes submitted that it was wrong to think of repayment as being conditional on no criminal proceedings being taken because the beneficiaries of the loans were the CHIUS who were therefore under a legal obligation to repay. I could not assume for purpose of this application that the prosecution would succeed in proving that. It could be said that the applicants would not have been likely to take a step which could be regarded as an admission, unless they thought that there was an implicit understanding that repayment would bring “an end to the matter”.

134. Had it turned out that the only offences were breaches of the Banking Ordinance, it would in my view have been very unlikely in the circumstances that the applicants would have been prosecuted for those breaches. But Mr. Fell was under no duty to tell the applicants that in due course there would be an investigation into the possibility of other criminal offences having been committed. He did not know what the Attorney General would do in response to Mr. Farrant's letter suggesting a possible investigation.

The absence of the alleged co-conspirators Dick CHIU and Tammy  Tam

135. Dick CHIU and Tammy TAM are not in Hong Kong. The whereabouts of Dick CHIU are unknown. Tammy TAM is still resisting extradition from Fiji. The applicants rely upon their absence as a factor causing prejudice to the defence. This is a matter outside the control of the prosecution. It is not uncommon to find that upon the trial of an alleged conspirator his alleged accomplices are absent. In any event, it cannot be assumed that if they were tried with the applicants they would elect to give evidence.

Inferred Prejudice: The effect of delay on memory

136. The applicants say that apart from any specific matters of alleged prejudice, prejudice may be inferred where there is delay and the longer the delay the more likely the inference. My attention was drawn to the following passage in the judgment of Powell J. in Barker v. Wingo (1972) 407 U.S. 514:

“There is also prejudice if defence witnesses are unable to recall accurately events if the distant past. Less of memory, however, is not always reflected in the record because what is forgotten can rarely be shown.”

137. Mr. Kaplan said that everyone is relying on ten year old memories. In fact the period in question is roughly four and a half to ten and a half years ago.

138. Memories do tend to fade over time. Mr. Fell’s evidence, for example, shows that he is not confident of recalling details. Contemporary documents are available in this case and witnesses may be able to use them to refresh their memories. From the circumstances of this case, I infer that where conversations are concerned it is likely be very difficult for witnesses to recall accurately what was said by whom. Even where there are documents they may need to be authenticated and memories will not necessarily be refreshed by them.

139. Bearing in mind that the burden of proof would lie upon the prosecution throughout the trial, I took into account the likely effect upon the memories of witnesses and the applicants of the distance in time of the events in question. I was satisfied that prejudice to the defence was to be inferred.

Institutional or systemic delay

140. This type of delay is considered in the Canadian cases, such as Askoy and Morin. It has not been suggested that the period between the filing of the indictment in April 1992 and the date in February 1993 originally fixed for the trial to begin would in itself have produced an unreasonable delay. Mr. Pethes submitted that it was not a period of delay which could be attributed either to the applicants or to the respondent.

141. I accept that such delay cannot be attributed to the ICAC or to the Attorney General's Chambers, but the courts are part of the criminal justice system and from a defendant’s point of view, delay in any part of the system is relevant to the question of his right under Article 11 to a trial without undue delay. Time spent awaiting court hearings is par of the period to be taken into account, to the extent that it is not attributable to any fault of the defendant. If the Executive fails to provides the funds required to furnish the Judiciary with adequate manpower and resources or the Judiciary is badly administered, undue delay in bringing cases to trial may be the result.

E.    The Public Interest in the disposition of charges of serious offences and in the conviction of those guilty of crime

142. Mr. Pethes said that the weight of this factor increases with the seriousness of the offence. Another way of putting it is to say that the weight of the public interest factor is proportionate to the seriousness of the offence.

143. The public interest is not the same as the level of attention being paid by the public to the case. Justice must be seen to be done if confidence in the criminal justice system is to be maintained but justice may sometimes, albeit in rate and exceptional cases, require a stay of proceedings even in a case (unlike this one) where there has been great loss to innocent victims.

144. The following matters have been put forward on behalf of the applicants as being relevant to the question of the public interest in the disposition of charges of serious offences and the conviction of those guilty of crime:

1. There the been no loss.

145. It is common ground that all the loans have been repaid, with interest. No loss has been suffered by anyone. The respondent says that it is a point in mitigation of sentence and nothing else.

146. I suspect that, if there had been any loss, it would have been relied upon by the respondent as a factor to be taken in favour of continuing the proceedings.

147. Mr. Scrivener has said that the CHIUS have incurred expense in making good the loans. The Crown’s case is that they were simply paying back money which they had improperly received, together with proper interest. As with other matters of fact which will be in issue if a, trial takes place, it is not for me to make a finding. The point was not one which could assist the applicants in the present proceedings.

2. The Banking Environment has changed since 1983-1985.

148. In this connection Mr. Scrivener referred to the following passage in the judgment of Duffy J. in the case of Charles CHEUNG Wai-bun:

“Hong Kong, and its banking industry, have moved on, and there cannot now, some ten years later, be the same intensity of public interest in ensuring that its early 1980s transgressions are punished. The public interest factor has diminished with the passage of time, and the change of circumstances.”

149. I agree.

3. No precedent to be set.

150. Mr. Scrivener says there is no precedent to be established by the intended trial. In other words, no novel point of law arises in the case which calls for a decision. That is so.

4. There is no public perception of any problem.

151. It was submitted that there was no public perception of any problem because all problems were sorted out behind closed doors to the apparent satisfaction of the then Commissioner of Banking. No customer of bank lost any money. The hank did not collapse. There was no collapse of the companies forming the Far East Group. Thanks to the wisdom of the Commissioner of Banking, the dangers were quietly averted and there was no public scandal.

152. D1 is a very well known figure in Hong Kong. No doubt there will be considerable public interest in the outcome of this application. All persons coming to this court, whatever their station in life, are equal before the law. Every case shall be dealt with on its merits without distinction of persons.

153. Damage or no damage, the offences charged in the indictment are very serious. A very large sum of money was involved. The commissioner of Banking evidently felt at the time when apparent breaches of the Banking Ordinance were discovered that there was a real danger of a collapse of the Far East Bank and of the Far East Group of Companies, if anything went wrong, with great loss to shareholders and depositors and a very severe blow to confidence in Hong Kong's financial system. That confidence had already been shaken by several bank collapses. It was a sensitive time in political terms. This was all before the authorities discovered, as the Crown now alleges, that the proceeds of the loans in question had gone to the CHIUS. However, the fact is that, due to the skill of Mr. Fell, none but a few people knew what had happened. There was no collapse. Nobody suffered financial loss. There was no political crisis. It was all long ago and times have changed. Hong Kong now has a much better regulated financial system. These matters must be taken into consideration when the weight of the public interest factor is assessed.

The intellectual impairment of D1

154. The case for D1 under this heading was that because of intellectual impairment from sub-cortical dementia he would not be able properly to defend himself if brought to trial. There is evidence that he suffers from a degree of dementia, that the condition is irreversible and progressive. Dementia is defined as an acquired deterioration of intellectual function.

155. It was said on behalf of D1 that -

(a)  He would not be able accurately to recall events within the last ten years.

(b)  Since he had a tendency to confabulate, he was liable to give an inaccurate version of events while honestly believing his description is accurate.

(c)  He would not be able to give accurate instructions to his legal advisers.

(d)  He would not be able to concentrate on what was happening during the trial, or on questions which might be asked of him either in the witness box or by his legal advisers. He would have difficulty in formulating relevant answers to questions.

(e)  He would not be able to remember events or what was said at the trial itself. He would not be able to give a consistent account.

(f)  There might be a possibility that his nealth will be further damaged by the trial itself.

156. The expert witnesses who gave evidence for D1 supported those propositions.

157. It was the case for D1 that if the trial had taken place without undue delay, D1 would have been in a position properly to defend himself, whereas his present condition of intellectual impairment made a fair trial in all the circumstances impossible. In the context of his right to a fair trial under Article 10 BOR, it was D1’s case that his ability to make full answer and defence had been prejudically affected.

158. Evidence in support of D1’s case came from distinguished medical and psychological experts, from two of his sons who manage activities of companies in the Far East Group and from people working in the Far East Group who have dealings with him and are in a position to observe his behaviour. The opinions of the experts who gave evidence for D1 are based upon clinical diagnoses, the results of psychometric tests, multiple resonance imaging (MRI) scans of D1’s brain; his medical history and the information about his behaviour given by persons close to him, such as his wife (who did not give evidence) and the witnesses I have mentioned.

159. There was no factual dispute about the medical history, the results of the MRI scans or the results of the psychometric tests. It was conceded by the respondent's experts that D1 suffers a degree of intellectual impairment. There was no agreement as to what his intellectual level was before the deterioration took place. There was no agreement as to how, in the light of the known facts, D1 might be expected to function at the trial if it took place.

160. In addition to the issues of diagnosis and prognosis, a legal issue was raised. Mr. Pethes for the respondent said that the medical evidence adduced by D1 had raised the question of whether he was fit to be tried. He submitted that in those circumstances there should be no stay of proceedings since the issue of fitness to be tried must be determined at trial by a jury pursuant to section 75 of the Criminal Procedure Ordinance. That section reads, so far as is material, as follows:

“75. (1) Where on the trial of a person the question arises (at the instance of the defence or otherwise) whether the accused person is under disability, the following provisions shall have effect.

(2) The court, if having regard to the nature of the supposed disability is of opinion that it is expedient to do so and in the interests of an accused person, may postpone consideration of the said question (hereinafter referred to as “the question of fitness to be tried”) until any time up to the opening of the case for the defence, and if before the question of fitness to be tried falls to be determined the jury return a verdict of acquittal on the count or each of the counts on which the accused person is being tried that question shall not be determined.

(3) Subject to subsection (2), the question of fitness to be tried shall be determined as soon as it arises.

(4) The question of fitness to be tried shall be determined by a jury; and -

(a) where it falls to be determined on the arraignment of the accused person, then if the trial proceeds the accused person shall be tried by a jury other than that which determined that question;

(b) where it falls to be determined at any later time it shall be determined by a separate jury or by the jury by whom the accused person is being tried, as the court may direct.

(5) Where in accordance with subsection (2) or (3) it is determined that the accused person is under disability, the trial shall not proceed or further proceed.

(6) ….”

161. Section 75 provides for the procedure to be followed where the issue of fitness to be tried arises “on the trial of a person it”. It has no application to pre-trial proceedings. This court was not trying the simple issue of D1's fitness to be tried; it was trying the issue whether in all the circumstances it would be an abuse of process to try D1. Intellectual deterioration during the pre-trial period was put forward as one factor to be considered with all other factors. An applicant for a stay is entitled to adduce evidence to show that during the period under consideration, where undue delay is alleged, he has suffered intellectual deterioration which has had a prejudicial effect on his ability to make full answer and defence at his future trial.

162. Mr. Pethes said in argument:

“After hearing all the medical evidence, if the jury finds that D1 is fit to be tried, there is no serious prejudice to the extent that no fair trial can be held. After that finding, there would be no basis for an application for abuse of process or under the Bill of Rights.”

163. It was rightly pointed out on behalf of the applicants that if a jury found that D1 was fit to plead, the issues which had been raised on the application for a stay would remain to be resolved. The proposition that where a person is fit to plead there can be no basis for an application for a stay is incorrect.

164. I took into account the evidence relating to D1's alleged deterioration in intellectual capacity.

165. There was argument as to whether section 75 of the Criminal Procedure Ordinance been repealed by the BOR. Since section 75 had no application to the present proceedings, there was no need for this court to rule as to its validity. Likewise the question whether section 76 has been repealed did not fall to be decided. I was inclined to the view that section 75 was not inconsistent with the BOR and that, if section 76 was inconsistent with and thus repealed by the BOR, section 75 would not fall with it.

166. The argument advanced on behalf of D1 that section 76 has been repealed by the BOR, was impressive and it may be that the appropriate authorities will consider following the example of the United Kingdom legislature which by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, section 3, amended the law so as to avoid the mandatory commitment to a mental hospital of a defendant who has been found unfit to plead in circumstances where there is no evidence that commitment to a mental hospital is appropriate.

The Medical History of D1

167. According to Dr. Richard YU, a specialist in nephrology, he first saw D1 in June 1978 because of severe hypertension due to cystic changes of the right kidney and nephritis due to medical problems suffered since 1972. Dr. YU described the renal function as being slightly impaired in 1978.

168. In October 1981, D1 had a serious stroke, from which it took six months to recover. His renal function was deteriorating slowly.

169. In late 1985, D1 was found to have significant heart disease. He had severe pneumonia in May 1986.

170. In early January 1988, D1 was admitted to hospital for investigation and management of his renal cyst. A renal angiogram showed a small left kidney compatible with nephrosclerosis and an enlarged right kidney with multiple large cysts. Following discharge from hospital, D1 suffered cardiac problems and acute renal failure. He needed 6 days intensive care. There followed a slow but relentless deterioration of the renal function. The hypertension worsened. D1 suffered an abnormal rise in blood pressure due to stress. He needed sedatives.

171. In December 1988, D1 suffered deep vein thrombosis in the leg, a complication of the kidney failure and needed more in-patient hospital treatment.

172. In February 1990, D1 went to the United States where puncturing of the renal cyst was carried out. There was no improvement in renal function and blood pressure remained high. It was realised that D1 had chronic renal failure arid that recurrent dialysis would be required in due course.

173. In a report dated 13th August 1990, Dr. YU said:

"Because of anaemia and advanced stage of uraemia, ... Mr. Chiu’s mental faculty, particularly his memory for details, is invariably affected. This is the result of insufficient oxygen carrying capacity in his blood to maintain a normal cellular function. The present stage of Mr. Chiu's renal failure is also characterised by mental changes manifested in intellectual deterioration with difficulty in concentration and failure to complete complicated tasks and make decisions, as well as mental fatigue associated which irritability and depression."

174. There was a gloomy end to the report, forecasting that though the inevitable dialysis would maintain the basic life functions, D1’s mental and physical capacity would worsen and his life expectancy would be very much shortened.

175. Dialysis followed and eventually, in April 1991, D1 had a renal transplant (of one kidney) in Canton. He had to take drugs to prevent rejection of the kidney and began to recover his physical health.

176. In a further report dated the 10th September 1991, Dr. YU indicated that on the 17th June 1991, D1 had had a cytomegalic virus infection which caused a mild episode of rejection which was dealt with by an increase in immunodepressive treatment.

Intellectual Deterioration

177. Dr. YU found that D1 had become depressed and irritable and complained of sleeplessness. He saw a significant deterioration in D1's intellectual ability as compared with his condition in August 1990 before dialysis treatment began. There was a lack of concentration accompanied by impaired memory. Dr. YU had to explain to D1 matters about his condition which he had up to then had no trouble in understanding. Dr. YU feared that a protracted trial would affect his physical health, shortening his life expectancy and that his mental capacity would rapidly deteriorate.

178. D1 was referred to Dr. Green, a psychiatrist, who in a report dated 16th September 1991 expressed the following opinion:

“There is no question that even on coarse clinical examination and simple testing, Mr. Deacon Chiu has dementia, which is a disease of the brain and not primarily of the mind.”

He said:

“In dementia, an individual experiences a decline in multiple cognitive functions in contrast to his previous intellectual level. There is a characteristic intellectual impoverishment with slow concrete thinking, reduced ability to abstract and an increasing difficulty in learning anything new.

It is my view that, Deacon Chiu exhibits such features and it is quite clear to my mind that his cognitive impairment is a direct result of his cardiovascular-renal disease and its subsequent treatment, for which the ‘price’ is ongoing cellular brain damage.

I am certain that Mr. Deacon Chiu is neither capable of sustaining concentration and other intellectual processes to such a level necessary to defend a complex prosecution and this statement is made independent of any physical problems which may result from such a prosecution …. Another feature which is of considerable importance is Mr. Chiu’s reduced ability to recall events from his recent past even as recent as some hours previously. I understand that the events with which he is charged occurred several years ago, and it is my view that Mr. Chiu will not recall details relevant to his own defence from that period.”

179. Dr. Peter Lee, a chartered clinical psychologist then examined the cognitive and mental functions of D1, reporting on the 30th November 1991 as follows:

"The test results obtained indicated that, Mr. Chiu was grossly impaired in memory and cognitive functioning. Intellectually he now functions at the lowest 5th-10th percentile of the normative population of his same age. This is highly discrepant with the background of an individual like Mr. Chiu who had achieved a remarkable record of career successes throughout his life. I would estimate that Mr. Chiu had suffered at least 30-40 IQ points of deterioration,"

180. Dr. Lee referred to major problems in learning and retention of new information. He said that D1 was deficient in his ability to analyse and understand the essential common characteristics underlying concepts, arguments and issues in dispute. His overall ability in planning and exerting reasonable judgment in handling complicated decision-making was weak. According to Dr. Lee, D1’s clinical presentation, together with his performance on the various, psychometric and cognitive tests administered, were fully compatible with a diagnosis of dementia of a moderate nature (on a scale ranging from nil to mild, moderate, severe and profound).

181. Finally, Dr. Lee said:

“Mr. Chiu is expected to have relatively few problems in handling simple decision-making and problem-solving in his daily life activities. He would, however, require occasional reminders and supervision. He may also be expected to be able to retain an adequate understanding and grasp of reality situations and demands made upon him. However, on basis of his presently documented impairment in higher cortical of problem-solving functions, he will definitely be unable to cope with highly complicated issues or decision formulations requiring understanding and/or recall of complex inter-connections between events happening in the past or immediate present.”

182. That opinion was based on examinations carried out on the 23rd and 25th November 1991.

183. Upon referral by Dr. Richard YU, D1 underwent an MRI scan on the 17th March 1992. In a report given on that day, Dr. Hector MA gave his opinion on the scan result as follows:

“Multiple UBOs” (unidentified bright objects) “are noted in areas as outlined above. It is a manifestation of arteriosclerotic brain disease and it signifies either arteriosclerotic demyelination or small infarcts or ischaemia without infarct.

There is no gross evidence of cerebral atrophy.”

184. The UBOs, indicating areas of damage, were spread in different parts of the brain at different levels and there were many of them.

185. On the 29th March 1992, Dr. Peter Lee examined D1 again and found that on the verbal subscale of the Wechsler Adult Intelligence Scale – Revised Cantonese Version – D1’s estimated verbal intelligence score was 80. This meant that his intellectual functioning was inferior to that of 90% of the population of his age.

186. On the Wechsler logical memory test, D1 had impaired memory and learning functions and there was confabulation, i.e. he tended to “recall” information which had not been given to him.

187. Dr. YU found the results highly consistent with his findings in the previous November. Though D1’s physical health was improving, there was no improvement in intellectual function.

Dr. Trimble

188. Dr. Trimble is a specialist with many years of expertise in neuropsychiatry and much experience in dealing with dementia cases. He is a consultant physician to the National Hospital for Nervous Diseases in London, to which D1 was admitted on the 2nd December 1992. D1 remained there as an in-patient for 36 hours, during which he was observed, examined and tested by Dr. Trimble, Dr. Kartsounis and others. A further MRI scan was done.

189. In a report dated the 11th December 1992, Dr. Trimble reviewed the results of the tests and concluded that D1 had sub-cortical dementia.

190. His intellectual capacity was dilapidated. He had memory disturbance, attention and concentration difficulties and performed poorly on cognitive tests sensitive to frontal lobe function, particularly in relation to planning of activities.

191. The MRI scan revealed scattered areas of abnormality precisely in the region of the brain that might be expected to lead to sub-cortical dementia in the opinion of Dr. Trimble. The most likely explanation, according to Dr. Trimble, was atherosclerosis, where areas of the brain are damaged by repeated small strokes, causing multi-infarct dementia.

192. Dr. Trimble’s opinion was that D1 would not be able to give appropriate testimony. People with abnormal frontal lobe function cannot provide appropriate and truthful responses. Perseveration is common (repeating the same thing over and over again), confabulation occurs and there is an inability to shift mental set. Thinking is concrete. Abstract legal concepts cannot be understood and acted on. D1, according to Dr. Trimble, would not be able adequately to access past memories. An underlying “paranoid” personality structure would surface at a trial where D1 felt under threat. That would be dangerous for his mental health and might require psychiatric treatment. The stress and tension of a trial might lead to depressive illness requiring medication, 1eading to a rapid deterioration of his mental abilities.

193. D1, in Dr. Trimble's opinion, was incapable of instructing solicitor or counsel in his defence.

194. Dr. Kartsounis saw D1 on the 3rd of December 1992 and in his report of the results of psychometric tests he concluded that:

“Mr. Chiu is functioning within the borderline - low average range on tests of general ability. His optimal level of functioning is estimated to be above the average range and present results indicate a substantial degree of general intellectual deterioration.”

195. Dr. Kartsounis also found that:

“… his memory skills are significantly impaired, particularly with regard to verbal material. He also presents with some word retrieval difficulties and performs inadequately on tests of frontal lobe dysfunction. His deficits occur in the context of a degree of impulsivity and difficulty with concentration and application. These observations are consistent with a predominantly anterior/sub-cortical cerebral dysfunction.”

196. The MRI scan showed scattered foci of high signal in the deep cerebral white matter and basal ganglia consistent with ischaemia.

197. Dr. Richard YU in January 1983 found that D1's concentration and comprehension had diminished. D1 had forgotten to take regularly the vital medication prescribed for the prevention of rejection of the transplanted kidney. On three occasions, D1 missed appointments with Dr. YU, having completely forgotten them whereas from 1978 he had never before missed an appointment.

198. Dr. Peter Lee saw D1 again on the 13th and 15th January 1993, for reassessment. D1 appeared to him to be highly motivated to do well in the tests, but perseveration was very marked, especially when his memory function was being tested. D1 could understand and comply with simple instructions but had great difficulty with more complicated instructions.

199. On the Wechsler Adult Intelligence Scale, D1’s performance put him within the lowest 10% of the population of his age. There had been no improvement over the previous year.

200. On the Wechsler logical memory test, D1's performance was very markedly below the normative level for verbal learning compared to the performance of individuals of his age group. There had been an unequivocal deterioration in his verbal memory function compared with the results a year earlier and the tests indicated that his verbal learning and memory functions were severely impaired.

201. On the Rey non-verbal learning test, D1 was found to be very severely impaired in the non-verbal aspect of his memory/learning function, his one hour recall rate having dropped in a year from 25% to nil.

202. As a result of those findings, Dr. Lee carried out a more detailed test of D1’s memory functions, the Wechsler memory scale, revised. The scores can be interpreted in exactly the same way as IQ figures. Thus 100 is an average figure, with 70 the low end of the normal range. D1's scores were as follows:

General memory index	66
Verbal memory index	70
Visual memory index	64
Attention/concentration index	56
Delayed recall index	64

203. D1’s performance was invariably within the lowest 2% of scores obtained by the population of his age. Dr. Lee found in this a further and unquestionable confirmation that D1 suffers from a severe impairment in all major aspects of his memory function.

204. Dr. Lee applied a recognised test designed to detect any tendency to exaggerate disability. He found no positive signs of deliberate falsification of test results.

205. It was accepted by the expert witnesses who gave evidence for the respondent that the psychometric tests were valid and these experts accepted also the test results. The MRI scan results are also accepted. The considerable body of evidence given by witnesses who described D1's behaviour in his daily life was unchallenged.

206. There was evidence of a television interview given by D1 on 15th September 1992 at the Lai Chi Kok Amusement Park. It consisted of the testimony of Miss Dodo Cheng, the interviewer, tape recordings of the interview, a transcript in Chinese of what was said and certified translation in English of that transcript. There was further evidence from Mr. Simon Beck of the Sunday Morning Post who described a press interview with D1 conducted by him in early July 1992. Miss Candy WONG Shuk-hang, a journalist gave evidence of a telephone conversation with D1 in Cantonese lasting five to ten minutes, on the 3rd January 1993 when she asked him about his plans for forming a new political party. There was also evidence from Miss CHAN Sik-chee of Next Magazine who had two successive telephone conversations each lasting about 15 minutes, at the end of August 1992 with D1. The language used was Cantonese, supplemented from time to time by English from D1.

207. There being no dispute as to the facts of D1’s test results or his observed behaviour, the difference between the experts lay in their interpretation of the facts.

208. It was common ground that the psychometric tests have built-in safeguards designed to detect malingering. The expert witnesses called by respondent made it clear that they accepted the test results and that they did not suggest that D1 was malingering. Mr. Pethes did not suggest on behalf of the respondent that the psychometric tests were inappropriate and he did not question the results. There was no suggestion that any witness who gave evidence for D1 was telling untruths or exaggerating.

209. I was satisfied by the evidence that D1's medical history was as I have described it.

210. D1 was interviewed by experts instructed by the respondent. Dr. H.K. Cheung, Medical Superintendent at Castle Peak Hospital, saw him and his wife on the 30th January 1992, interviewing them separately and administering a mini mental state examination which produced a score or 25. According to Dr. Cheung, such a score could not be achieved by demented person. His conclusion was that intellectual function and memory were intact, there was no evidence of psychiatric illness or insanity, there was no need for any psychiatric hospital treatment and D1 was definitely fit to plead.

211. Mrs. LAU YU Po-kwan, a Senior Clinical Psychologist interviewed D1 alone for 1½ hours on the 11th February 1992. She found, in relation to a possibly lengthy court hearing, that D1 should have no difficulty in understanding what was said or following what has happening.

212. Dr. Samuel Leung, a consultant neurosurgeon, saw D1 on the 10th February 1992 to assess his neurological condition. He noticed some memory problems but concluded that D1 did net suffer from any organic neurological disease and his poor memory could be accounted for by this previous stroke and chronic renal failure. When he saw the MRI scans and the accompanying report, however, in April 1992, he agreed that there was evidence of ischaemia without infarct or small infarcts or demyelination. He expressed the view that there would have to be substantial loss of cerebral cortex or infarction in critical areas to produce a significant effect on the brain to cause deterioration of high mental function, thus labelling a patient as demented. He did, however, modify his original opinion to read “patient did not suffer from any organic neurological disease that may impair his mental ability to stand trial in court.”

213. Dr. H.K. Cheung when in April 1992 he saw the reports of D1's experts, said in a report that the chief target in his examination had been to assess D1’s competence to stand trial. Having read Dr. Peter Lee’s psychometric results, he agreed that there was probably a degree of intellectual deterioration. He said however, accepting Dr. Peter Lee's figures, that D1 was still functioning within the normal range, because of the finding by Dr. Lee that D1's IQ level was 80, whereas the lower limit of IQ for normal people was generally taken to be 70. He still had no doubt that D1 was mentally competent hinge on the absolute level or performance and not an evidence of mental deterioration from a higher norm. He did not think the MRI scans findings were crucial and saw no need for a further examination.

214. With regard to Dr. Peter Lee's report, Mrs. LAU YU Po-kwan, accepting his figures, said that an overall IQ of 80 indicated that D1 was functioning in the dull normal range. Individuals with that level of intelligence were considered competent to stand trial.

215. When they came to testify, the respondent’s experts maintained on the basis of all the expert evidence, the evidence of lay witnesses as to D1's behaviour and the evidence of the television and press interviews which he had given, that D1 was fit to plead and that was all that mattered, so far as they were concerned. However, in cross-examination, Dr. Samuel Leung, a consultant neurosurgeon at the Queen Elizabeth Hospital, said that he was not in a position to dispute the validity of the tests carried out by Dr. Peter Lee and by Dr. Kartsounis. He accepted that the tests carried out by Dr. Peter Lee were a battery of tests used by psychologists. He was not in a position to say that the test were not good ones. He presumed that the tests carried out by Dr. Kartsounis were appropriate and he was not in a position to dispute the psychologist’s report. He had concluded at the end of his interview with D1 on 10th February 1992 that D1’s short term memory was poor but the intermediate or long-term memory was preserved. When asked directly whether he was suggesting that D1 was “putting it on”, he said that he was not suggesting that. Nor was he attacking the integrity of the doctors for the applicants. He was unable, however, to accept their conclusions.

216. Dr. Leung, referring to the MRI scans indicated that the memory function was so scattered through the brain and there were so many pathways for signals to pass within the brain that the “tiny dots” he saw on the scan would not impair communication within the brain to a severe degree. He agreed, however, that the scattered areas of abnormality shown in the scan were in precisely the region of the brain that might be expected to lead to the abnormalities of sub-cortical dementia, as Dr. Trimble had put it in his report. The UBOs which I saw on the slides produced by Dr. Trimble cannot properly be described as “tiny dots”. They varied in size but many were of substantial dimensions.

217. Dr. LAU YU Po-kwan, Senior Clinical Psychologist at the Hong Kong Psychiatric Centre spoke of her 1½ hours interview with D1 in February 1992. She had been asked to see whether D1 was fit to be tried. She did not carry out psychological tests because D1 told her that he had recently been assessed by Dr. Peter Lee and that would have affected his performance.

218. She said that, on the basis of 20 years experience, she could usually say when a test was required to determine if a person was bordering on the defective level of intelligence where a closer scrutiny would be required. Dr. Lau was quite confident after the interview that had D1 been assessed on the Wechsler scale, he would not have fallen to a level where she would consider him to be defective. She put that level at the lowest 2 to 3 per cent of the population. I note that so far as memory is concerned, D1's memory function was shown by the tests to be in the lowest 2 per cent. It follows that Dr. Lau would put his memory function into the defective range.

219. Dr. Lau estimated at the interview that D1's general intelligence level was around and above the 80s, which, as she said “turned out quite close to what he got”. She said that on the basis of her interview she had no reason to question the results obtained by Dr. Peter Lee.

220. In cross-examination Dr. Lau said she accepted the results of Dr. Peter Lee’s tests. She had no reason to believe that the tests carried out by Dr. Kartsounis were not valid. She noted that in the later tests carried out by Dr. Peter Lee there was a stronger suggestion of impaired memory. There was greater deterioration in the second test.

221. Dr. Lau confirmed that it was an unique situation to be asked, as she had been asked by the Attorney General's Chambers to assess a person without seeing the previous medical reports. Had she not been prevented by the Attorney General's Chambers, she would have wanted to see the results of Dr. Peter Lee's tests. She had no information at all about the case when she conducted the interview.

222. Dr. Lau agreed that confabulation would be a serious problem in the context of a trial. She had not noticed confabulation.

223. The witness agreed that forgetfulness in someone with a previously good memory would be significant in dementia. Inability to concentrate would also be relevant, as would a deterioration in the ability to make decisions and paranoia. Dr. Lau agreed that a former high achiever, suffering dementia, would become frustrated or bad tempered.

224. Referring to the Wechsler Adult Intelligence Scale, Revised (Cantonese version) Dr. Lau agreed that on the basis of D1's performance, he was within the borderline limited to low average intelligence range. It was worse than she would have expected of D1: at a conservative guess she would expect around 100 to be the average. So on any view, she agreed, D1 had suffered an impairment of 20 points overall. She attributed that partly to disuse and partly due to an unexpected drop in the performance scale.

225. The witness agreed that D1's overall performance was within the lowest 10% of his age group.

226. Dr. Lau agreed that the Wechsler Logical Memory Test was an appropriate test. A one hour delayed retention of information at only 6% was bad. She also agreed that in the year between Dr. Lee's tests the verbal memory function had become worse. That would be highly relevant to the question of dementia.

227. Dr. Lau agreed that the Rey non-verbal learning test was appropriate. A drop in one hour retention from 25% to nil over a year was a significant deterioration and relevant to dementia.

228. The Wechsler memory scale (revised) was also an appropriate test, according to the witness. She said that a general memory index of 66 was slightly worse than D1’s general intelligence. She agreed that in all the memory subtests, D1 was within the lowest 2% of scores by people of his age. She finally conceded that that figure represented a severe impairment, relevant to the question of dementia.

229. With regard to confabulation, the witness agreed that a person who confabulates is going to lie and not know he is lying. That was very important in assessing whether someone is able to defend himself properly in a crucial trial. She was then asked:

Q. “If you have got a person who is liable to confabulate, is he in your opinion fit to stand trial?”

Her answer was “No”.

230. Dr. Lau said that she accepted the tests administered by Dr. Kartsounis and the result of those tests.

231. In re-examination, Dr. Lau said that a person could be suffering from some form of dementia and still be fit to stand trial. On the basis of the test D1’s memory was deteriorating but the reports she had seen did not cause her to alter her view as to whether D1 was fit to stand trial.

Dr. CHEUNG Hung-kin

233. The Medical Superintendent of Castle Peak Hospital, Dr. Cheung, said in evidence that he was confident in his conclusion that D1 was fit to plead. Having dealt with hundreds of cases relating to fitness to plead, he had encountered many cases who were functioning at a lower intellectual and memory level than D1 who had been found by a court to be fit to plead. D1's intellectual functions were within the normal range. It was the absolute level of functioning, rather than deterioration which determined his judgment on fitness to plead. Most mildly mentally handicapped parties down to an IQ of 60 had been found competent to stand trial.

232. The witness said that he would not argue with an estimate that D1 had had an IQ of 120 or more, it was certainly a probability though one could not be certain. An IQ as low as 90 could not be totally ruled out.

234. If D1 had dementia, it was in the mild category, according to Dr. Cheung, and people with mild dementia were fit to plead.

235. In cross-examination, Dr. Cheung said:

“I accept that he is impaired – I accept all this. I accept that he is impaired. I have no argument with that the crux of the matter is, to what extent”.

He was asked:

“… you accept that he is suffering from a degree. of intellectual deterioration and this deterioration may have occurred comparatively recently through a number of different events?”

236. His answer was “Yes”. He respected all the findings of Dr. Green, as to the condition he saw D1 in at the September 1991 interview.

237. In Dr. Cheung's opinion, D1 possesses what he called “residue functions of memory”. He accepted Louisa Wong’s evidence that she had to find things for D1 every day.

238. Having been made aware of the anecdotal evidence about the forgetfulness or inability to concentrate which those around D1 had noticed, Dr. Cheung agreed that the diagnosis of dementia had been established, but in his opinion D1 was an exceptional person who was still functioning at the non-dementia level.

239. In relation to Dr. Trimble, the witness said “I accept his purely medical findings but not the conclusion that he was not fit to stand trial.”

240. In relation to the question whether a person liable to confabulate is fit to stand trial. Dr. Cheung said “If you want a purely medical answer, the patient who is not remembering things in the past is therefore at a disadvantage. He agreed that such a person is liable to give his counsel inaccurate instructions.

241. Later he said:

“If you want to talk about his current memory, I would accept all the findings; I respect all the findings of learned psychologists, and I would acknowledge that his detailed memory functions were, indeed, unsatisfactory, however his cruder memory for recent events did not appear that bad and although he might forget the fine details, he was able to remember the skeleton of events.”

242. Dr. Cheung accepted passages in the report of Dr. Peter Lee which said that D1’s level of performance is very markedly below the normative level for verbal learning compared to the performance of individuals of his age group and that D1 was very severely impaired in the non-verbal aspect of his memory learning function.

243. Of the psychometric tests, Dr. Cheung said:

"Laboratory tests must be used in conjunction with real life performances. You cannot say that you just send any person to the lab and that is it. Medicine is an art as well as a science.”

244. Dr. Cheung pointed out that studies in Beijing and Hong Kong showed that a Chinese person clinically diagnosed as demented cannot score above 17 on the mini mental state examination test whereas in the West, a score below 25 would indicate dementia. Applying the Chinese criterion, D1 was well above the score of 17 and accordingly the score would not be considered to indicate dementia. The difference between East or West might be due, he thought to difference in culture and education. Clearly the witness was not using the word dementia in the sense in which the applicant’s experts were using it.

245. D1’s experts maintained that the Mini Mental State Examination was too crude a test to be of value in this case.

246. With regard to the TV interview, Dr. Cheung said:

“Real life performance is sometimes more relevant in answering real life problems than more sophisticated but sometimes rather unrealistic laboratory investigations.”

247. There was no evidence to show that the tests which the respondent's experts had agreed to be valid were "unrealistic".

Anecqotal Evidence

248. The following examples of D1's behaviour were given in evidence by D1's witnesses and the evidence was not challenged or contradicted.

D1 always wants his secretary to attend meetings with him and to keep a note of what happened. He is shaken if he cannot find her to assist him. His secretary say: “I have to find things for him every day”

D1 forgets to observe security. He used to lock up important documents and now forgets to do so. D1 addressed two secretaries by the names of two previous ones. Louisa and Opal were addressed as Anna and Doris.

D1 had difficulty in remembering the names of people he wanted to telephone even though they were well known to him.

D1's handwriting has deteriorated. He cannot remember how to write some characters.

D1 has difficulty in expressing himself and finding words.

Formerly able to take decisions, he now asks everybody what he should do and even then does not decide.

D1 is supposed to be knowledgable about Chinese history but has caused Ching Dynasty roofs to be put on Tang Dynasty House in Singapore.

He has insisted against all advice on departing from the agreed phasing of the development of the Tang City in Singapore, thus exceeding the budget for the development and making it less cost-effective.

He changes agreed plans when the work has been done and causes a waste of money.

D1 delegates a task to one person, then to another causing confusion.

D1 scolds his sons in public whereas he rarely did so before.

D1 show symptoms of paranoia.

Louisa Wong told him she could not attend a dinner which he wanted her to go to. He forgot what she had told him.

D1’s secretary told him she was going to deliver a cheque for $7.8 million in an important transaction and he forgot all about it.

D1 goes into his office and reads papers which he has read before. He is not working in any real sense.

D1 forgets his own home telephone number.

D1 neglects to take important drugs needed to prevent rejection of the transplanted kidney.

After summoning people to his office be forgets why he did so.

D1 raises topics at meetings which the people present are not in a position to discuss, as they concern other departments.

D1 against advice ordered $20 million worth of sterling to be purchased the purchase resulting in a loss. He denied all recollection of giving the order.

He was unable to recall whether he had authorised a remittance of $500,000.

D1 completely forgot he had received a 2 hour briefing for a meeting and complained that he had not been briefed.

D1 has a tendency to repeat himself.

At directors meetings, D1 is unable concentrate on one topic at a time; going round and round and getting nowhere.

249. I am conscious of the fact that D1 had an incentive to perform badly in the tests. The lay witnesses who gave evidence for him are employees who owe him loyalty or his sons who may be expected to be influenced by filial piety. One of them, D2 was his co-defendant. Whilst I was well aware that this unchallenged testimony came from witnesses who could not- be regarded as independent, I accepted it as true. Nevertheless, I bore in mind the point made by one of the respondent's experts that although there was evidence of bad decisions and errors, everyone makes bad decisions and errors from time to time and it is difficult to see them in perspective unless one knows how many wise and accurate decisions have been made by the person in question ever a given-period.

250. As to the level at which D1 can perform in a real life situation as distinct from a test situation the experts for the respondent maintained that clinical judgments by doctors and psychologists with great experience of persons with impaired intellect are important and that laboratory tests alone are not sufficient. They found it useful to consider how D1 performed in the television interview and the press interviews in order to assess his ability to function in everyday life. Drs. Trimble, Kartsounis Lee and Green, who do have great experience, considered the television and press interviews to be of little or no value in relation to a diagnosis of dementia. There was disagreement over the significance of D1’s use of language in the interviews. Here, the Cantonese speaking experts had the advantage of seeing a Chinese person speaking their own dialect (which was not his native dialect) and assessing him in the light of their own experience of the local idiom and of Chinese patterns of thought and speech.

251. Emphasis was placed by Mr. Pethes on the fact that D1 is still the Chairman of the Far East Group of companies and that he spends his days in his office. I was pointed out by Dr. Trimble, with historical examples, that a person can continue to occupy a position of power, though suffering from dementia, given sufficient support from those around him. D1 has such support. Merely remaining Chairman is not the same as being an effective Chairman. The evidence of those who worked with D1 indicated that he was a figurehead, not functioning effectively. If D1 had been functioning effectively as head of a group of public companies, there must have been many individuals outside the circle of his family and employees who would have been in a position to give an account of their experience in negotiations and discussions with D1 in matters of business or otherwise. No witness was called by the respondent to give evidence as to D1’s performance in challenging business situations over the past 2 years, but I recognize that the burden of proof lay upon D1. The respondent put emphasis upon the fact that D1 had in the recent past conceived the idea or forming a new political party in Hong Kong. The evidence was far from showing that he had made any substantial progress in putting the idea into practice. It has seven members, including his wife.

252. The performance of D1 at his interview with the respondent's experts and in his television and press interviews did suggest that the estimates made by his experts of his ability to function were unduly pessimistic in some respects. For example, D1 it appeared could think and express himself in abstract terms whereas his experts doubted if he would be able to do so in court. However, there was nothing in the interviews to contradict the strong and unchallenged evidence of severe deterioration in memory function. The interviews presented no severe challenges. Miss Dodo Cheng told him in advance what she was going to ask and generally the questions he was asked by different interviewers were familiar, simple and easy to answer.

253. The case against D1, assuming that the facts about the movement of funds could be proved, depended partly on documents but also upon what might have been said between him and his alleged co-conspirators between 1982 and 1986, and between him and members of the office of the Commissioner of Banking in 1985 and 1986. There would also have been evidence of his interview with ICAC in October 1988.

254. In the light of all the expert evidence and of the evidence from other witnesses as to his behaviour in his daily life, I was satisfied on the balance of probabilities that D1 was suffering from dementia. The condition is permanent and progressive. He has a sub-normal and deteriorating memory function, putting him in the lowest 2% of his age group, and his intellectual function generally has suffered a considerable deterioration over the past couple of years, so that he now finds himself towards the lower end of the normal intellectual range, among the lowest 10% of his age group with an intellectual function comparable with that of a street sweeper. D1’s social skill are intact, except perhaps for increasing irritability, and the evidence is that a person with dementia develops ways of masking it so far as he can. It is not surprising that in casual conversation he may make a good impression. Dr. Trimble’s evidence suggests that the social skills are among the last to go. His ability to defend himself has been seriously impaired by the dementia.

Conclusion

255. In this case the evidence to be relied upon by the prosecution is voluminous: the investigation was bound to take a great deal or time and effort and in looking at the time elapsed I took that factor into account. Nevertheless I was satisfied that the long delay from the time when the questioned loans came to the attention of the authorities to the date when the trial was scheduled to begin was unjustified. At first, it was proper for the authorities to proceed with caution because of their desire to limit the potential damage flowing from the apparent breaches of the Banking Ordinance and because of their fears that a failure to limit that damage night well result in grave harm to the financial system of Hong Kong at a very sensitive time. If a crime is committed which may, by its nature, pose dangers to society which go beyond the immediate mischief caused, the authorities cannot be required to embark on immediate overt action against the suspected wrongdoers without regard to the consequences which may flow from it.

256. Sometimes the wider public interest requires that an investigation be covert in its early stages and therefore slower than it might otherwise be. In the present case, however, the Commissioner of Banking failed to report the matter officially to the Attorney General’s Chambers until February 1986, though it had come to the attention of his office early in 1985. The subsequent ICAC investigation was deliberately delayed in response to representations made by the Commissioner of Banking and the Attorney General’s Chambers and that delay endured for far too long after the deed of repayment had been entered into and the substituted security for the loans had been provided.

257. The evidence led me to conclude that it had been decided that no overt action was to be taken which might involve the Far East Bank before repayments had been completed according to the schedule. Restrictions placed upon the investigation made it painfully slow. Mr. Swift was only able to interview D1 in October 1988, two months after completion of the payments. He was then ordered to charge D1 though he did not feel ready to do so. The order was not given for operational reasons but because D1 was applying for a renewal of the ATV licence. For longer than was necessary, D1 and D2 had no hint that they might have to defend themselves in connection with the loans. D1 had even been permitted to remain Chairman of the Far East Bank aftewr the takeover by IBI. D2’s diaries for the relevant period had been disposed of.

258. Because of the arrest of D1 before the investigation had been completed, the post charge period was extended and it was not for many months that the holding charges were replaced by the ones which appeared in the indictment.

259. The post charge period was also extended by the fact that attempts to extradite Tammy Tam were permitted to dictate the pace of the committal proceedings and many months were unnecessarily lost, through diversion of resources and a serious mistake by the Crown in relation to The extradition application, before the prosecution finally decided to get on with the committal and to treat the extradition as a separate matter.

250. As a result of long and unnecessary delays in the investigation and in the preparation of the prosecution's case for the committal proceedings, the applicants were prejudiced in the preparation of their defence. When they first had notice, even in outline, of the case against them, they needed to cast their memories back to events up to six years in the past. The period is now up to about ten and a half years. They had not been able to put their minds to their defence and take steps to prepare it. There is a very strong inference of prejudice to the memories of witnesses from the long period which has elapsed, even though much of the case depends on documents.

251. The delays of which I have spoken were not the fault of the applicants. I found that the steps they took prior to committal were bona fide and not to be held against them. They are responsible for the ten weeks lost as a result of their attempt after committal to postpone the hearing date but in the event, the loss of time was not such as to make a material difference.

252. I found that the right of each applicant under Article 11 to a trial without undue delay had been infringed.

253. Weighing the above matters against the public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, I found that notwithstanding the prejudice I have described and the infringement of his right to trial without undue delay, D2 had failed to show on balance of probabilities that a fair trial of him on this indictment was not possible. He had failed to show that his trial would be an abuse of process. It is not the case that every infringement of the right to trial without undue delay must automatically lead to a stay of proceedings. The matter must be looked at in the round and a value judgment made.

254. So far as D1 was concerned, the prejudice to him 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 in the circumstances of this particular case on his ability to make full answer and defence.

255. I was mindful of the fact that this man, who will be 68 years old on the first of May 1993, has had a history of very serious medical problems over the past few years, leaving him with a transplanted kidney, a damaged cardiovascular system and brain damage. His doctors were of the opinion that the stress and strain of the trial would be likely to have a seriously adverse effect upon his health, hastening the rate of his intellectual deterioration and shortening his life.

256. The addition of these factors to the scales tipped them decisively in favour of D1. When I looked at the whole case in the round, I was satisfied on the balance of probabilities that in all the circumstances, whatever directions I might give to the jury, D1 could not have a fair trial on this indictment. He would be deprived of his right to a fair trial at common law and under Article 10 and his trial would therefore be an abuse of process. In those circumstances I was satisfied that his was one of the rare and exceptional cases in which it was my duty to order a stay of proceedings.