HKSAR v. KHAW KIM SUN

HCCC 389/2023

[2024] HKCFI 3535

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 389 OF 2023

_______________

_______________

_______________________________

REASONS FOR RULING

_______________________________

A.  Introduction

1.  On 22 May 2015, two women were seen inside a car which had stopped at a bus stop outside Sai O Village in the New Territories. They appeared to be asleep. A police officer who happened to be in the area smashed one of the car’s windows. The women were found to be unconscious. They were taken to hospital where they were later both certified as dead. In due course it was established that they had died from carbon monoxide poisoning. For many months it was assumed that a defect in the car had caused the carbon monoxide to be discharged. However, eventually it was shown to have come from a deflated yoga ball which had been found in the boot of the car. The two women were the wife and daughter of the defendant, Dr Khaw Kim Sun, an associate professor in the Department of Anaesthesia and Intensive Care at the Chinese University of Hong Kong and a senior medical officer at the Prince of Wales Hospital.

2.  When Dr Khaw was interviewed following the discovery that the yoga ball had been the source of the carbon monoxide, he said that he had originally obtained some carbon monoxide to conduct research on animals. Shortly before the death of his wife and daughter he had filled the yoga ball with the carbon monoxide because he wanted to kill rats at his home. He had then taken it home, but said that he had not put it in the car. He did not know how it had got there. The prosecution’s case was that there were only three people who could have put it there: Dr Khaw, his wife or his daughter. The prosecution contended that his wife and daughter could be eliminated, and therefore it had to have been Dr Khaw who had put the yoga ball there. He had done so, said the prosecution, intending to kill his wife, and had unintentionally killed his daughter as well.

3.  Dr Khaw pleaded not guilty to two counts of murdering his wife and daughter. His trial took place in 2018. He was convicted on both counts, and sentenced to life imprisonment. His application for leave to appeal was refused by the Court of Appeal, but his appeal to the Court of Final Appeal was allowed in November 2023 on the basis of a misdirection by the trial judge relating to one particular feature of the evidence. Dr Khaw’s convictions were quashed, and a new trial was ordered. That retrial is about to get underway.

4.  This short narrative shows that the case is an exceptionally unusual one: a highly educated man facing murder charges where the method he is alleged to have used to murder his wife is virtually unparalleled in the annals of crime. When you couple that with the unintended death of his daughter, and the absence of any direct evidence that it had been he who had put the yoga ball in the car, so that the prosecution’s case against him was circumstantial only, you have all the ingredients which made the case one which was inevitably going to attract a huge amount of publicity and public discussion. It is for that reason that Dr Khaw now applies for his retrial to be stayed on the basis that the publicity which the case has received up to now will prevent him from having a fair trial.

5.  There is a second basis on which the defence apply for a stay of the retrial. What the defence describe as the “key exhibit” – namely the yoga ball itself – was irreparably damaged during experiments conducted on it by one of the experts instructed by the prosecution. In this ruling, I deal with both grounds advanced by Dr Khaw for staying the retrial.

B.  The pre-trial publicity

6.  The tension between two principles. Two competing principles lie at the heart of an application to stay a trial because of pre-trial publicity. The first is the strong public interest in ensuring that anyone charged with an offence – particularly an offence as grave as murder – is tried in a court of law. The second is the unalloyed imperative for the trial of the defendant – any defendant – to be fair. That trumps everything else. If, for one reason or another, a defendant cannot get a fair trial, he cannot be tried, however undesirable it may be for the allegation against him not to be determined in a court of law.

7.  For that reason, it has frequently been said that the power to stay proceedings because of pre-trial publicity painting the defendant in a bad light is one which should be only exercised “as a last resort”[1]. It is a “highly exceptional” power[2], and should be exercised “most sparingly”[3]. It is a power which, as we shall see, has in fact been exercised very rarely.

8.  Having said that, these considerations should not influence a court unduly. If the court concludes that the pre-trial publicity adverse to the defendant will prevent the defendant from getting a fair trial, the court must stay the proceedings, whatever has been said about the power to stay proceedings being a power to be exercised very sparingly. In other words, observations in the decided cases about the power having to be exercised very sparingly are not to be regarded as limitations on the court’s power to stay proceedings. Rather they are a reflection of the fact that, despite the pre-trial publicity, it is recognised that in the overwhelming majority of cases there are things which can be done to eliminate the risk that adverse pre-trial publicity might have caused jurors to be prejudiced against the defendant.

9.  The relevant context. In a society where freedom of the press is as cherished as ours, there will inevitably be much comment following a defendant’s conviction in a case which has received a high degree of notoriety. As Ribeiro PJ said in HKSAR v Lee Ming Tee & anor[4]:

“In a society where the press is free it is inevitable that the reporting of crime will, in some sections of the media, be lurid and sensationalist, sometimes even at the risk of punishment for contempt. The more heinous or shocking a particular crime, the more it is likely to be given notoriety and to receive potentially prejudicial reporting.”

Having said that, the public interest in trials proceeding to their conclusion should not be overlooked. As Ribeiro PJ said[5]:

“Plainly, it is not in the public interest to permit [prejudicial media coverage] in itself to abort the prosecution of a person accused of … serious crimes.”

10.  But the concern is not just with prejudicial press coverage and coverage in other news media. We live in the new world of online forums. People will inevitably express their views about a notorious case on them. Much of that will be uninformed. After all, they will not have heard the evidence in the case (except in the highly unlikely event of them having attended the trial throughout). Indeed, much of the comment will not just be uninformed. We live in an age when people use the anonymity of online forums to express outlandish views on pretty well every subject under the sun. In a case such as the present one, it would be foolish to pretend that there would not be any potential jurors who had read something about the case. Many of them could well have read extreme and often unpleasant things which had been said about Dr Khaw. That is the unpalatable reality of this case, and it is an important part of the context in which the application for a stay on the basis of adverse pre-trial publicity has to be judged.

11.  The applicable principle. The leading case in Hong Kong on the principles applicable to applications for a stay on the ground of adverse pre-trial publicity is Lee Ming Tee. Ribeiro PJ quoted with approval[6] the following passage from the judgment of Brennan J in Jago v District Court of New South Wales[7] in the High Court of Australia:

“Adverse publicity in the reporting of notorious crimes … may present obstacles to a fair trial; but they do not cause the proceedings to be permanently stayed. Unfairness occasioned by circumstances outside the court’s control does not make the trial a source of unfairness. When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues. The responsibility is discharged by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer.”

Ribeiro PJ echoed that thinking when he said[8]:

“… the Court approaches stay applications where a fair trial is said to be impossible … [by] placing its faith primarily in the efficacy of measures available to overcome any potential unfairness.”

The critical question, then, is whether this is a case in which measures such as a strong direction to the jurors to put any prejudicial reporting which they may have read to one side will be sufficient to “counteract” any such prejudice.

12.  Confidence in the jury system. Some people might say that whatever potential jurors think about their ability to put any prejudicial reporting or publicly accessible posts out of their mind, or about their ability to follow directions from the judge to do that, that would be asking too much of them. Asking them to put things like that out of the mind would be an exercise in futility. It is here that the foundation of the jury system comes into play. The core feature of the jury system is that we trust juries to follow the directions they are given by the judge. As Lord Hope said in Montgomery v H M Advocate[9] in the Privy Council:

“… the entire system of trial by jury is based upon the assumption that the jury will follow the instructions which they receive from the trial judge and that they will return a true verdict in accordance with the evidence.”[10]

Similarly, in Murphy v The Queen[11], having referred to previous dicta to the effect that “[p]rior information about a case, and even the holding of a tentative opinion about it, does not make partial a juror sworn to render a true verdict according to the evidence”, the High Court of Australia continued:

“To conclude otherwise is to undermine the integrity of the system of trial by jury and the effect on the jury of the instructions given by the trial judge.”

13.  These views have been replicated in Hong Kong. Thus, in Lee Ming Tee, Ribeiro PJ said[12]:

“Reliance on the integrity of the jury and its ability to try the case fairly on the evidence, to put aside extraneous prejudice and to follow the directions of the judge is fundamental to the jury system itself.”

In HKSAR v Kissel, Yeung VP said[13]:

“In our system of the administration of justice, the court must act on the assumption that the jury will act in good faith, on the evidence and in accordance with the directions of the judge …”

And in HKSAR v Chau Yau Ming, Macrae VP[14] said:

“… as an appellate court, we must proceed on the premise that the jury will have faithfully abided by and obeyed the judge’s instruction. For appellate courts to yield too easily to the notion that they might not is to erode trust in our jury system and ultimately to undermine our legal constitution.”

Much the same could be said of a court of first instance about to embark on a retrial. It too should not yield too easily to the notion that jurors might not comply with the judge’s directions. To do that would likewise erode trust in the jury system which underpins the way we decide the guilt or otherwise of people charged with serious crimes.

14.  Indeed, it goes further than that. Not only will the court assume that jurors will follow the directions they are given. Experience has shown that they do just that. In a passage worth quoting in full, the English Court of Appeal in R v Abu Hamza[15] quoted with approval what the trial judge had said:

“For what it is worth, this judge’s experience leads him to endorse the conclusion that lawyers are occasionally unwisely dismissive of juries. Almost universally, they approach their task and their oath with conspicuous conscientiousness. They are often unavoidably faced with inadmissible evidence which they must discount, especially in the case of several defendants, and experience strongly suggests that, whilst desirable, it is not necessary for them to be kept wholly ignorant of such evidence in order to be able to reach a careful decision which takes no account of it. Extensive publicity and campaigns against potential defendants are by no means unknown in cases of notoriety. Whilst the law of contempt operates to minimise it, it is not always avoidable, especially where intense public concern arises about a particular crime and a particular defendant before any charge is brought. Jurors are in such cases capable of understanding that comment in the media might or might not be justified and that it is to find out whether it is that is one of their tasks.”

15.  The English Court of Appeal’s confidence in the ability of jurors to put prejudicial press reporting out of their minds was not based on any empirical research. That is because such research is not permitted in England (nor in Hong Kong for that matter). Its confidence was based on the judges’ experience – no doubt their observation of how they had seen juries behave over the years. But in the following memorable passage from his judgment in Lee Ming Tee[16], Ribeiro PJ explained why he thought that jurors could be trusted to ignore prejudicial press reporting:

“First, with the passage of time, any recollection that a juror may have of adverse publicity can be expected to fade, lessening its prejudicial effect. … Secondly, the jury may sensibly be credited with the ability to overcome any pre-trial prejudice because of the nature and atmosphere of the trial process itself. Whatever impression of the case members of the jury may have gained beforehand, at the trial, they are given direct, first-hand access to the actual evidence in the case, presented systematically and in detail, with live witnesses tested by cross-examination and exhibits tendered for inspection. They are addressed as to the significance of such evidence by counsel on both sides and guided by the impartial summing-up of the judge. Many jurors will already harbour a healthy scepticism about certain kinds of press reporting. They can be credited with the intelligence to realise that whatever may have been reported, they are far better placed at the trial to make up their own minds on the evidence with the help of the judge’s direction. It is well recognised that in such circumstances, immersed in what Lawton J called ‘the drama of a trial’ (R v Kray (1969) 53 Cr App R 412 at p 415), the residual effects of any prejudicial pre-trial publicity on the minds of the jury are likely to be minimal.”

16.  Many of the dicta which I have cited predate the advent of online forums. But the principles remain just the same. The principal measure to ensure that jurors will not be prejudiced against Dr Khaw by ignorant, uninformed and perhaps ludicrous posts on online forums will be just the same as prejudicial press coverage: giving the jurors a strong direction to put any prejudicial posts to one side. The critical question, as was said in Kissel, is

“whether the risk of prejudice is so grave that no direction of the trial judge, however careful, could reasonably be expected to remove it.”[17]

17.  The standard direction to jurors. It is important to emphasise that the concern about the impact of adverse pre-trial publicity relates to what potential jurors may know about the case before they are empanelled. Once they have been empanelled, they will be given the standard direction that they should not go onto the internet to find out more about the case – though that would have to be tailored in this case to an additional instruction that they should not try to find out more about what has gone on before.

18.  Four earlier cases. The defence say that there have been occasions when adverse press coverage has prevented a defendant from having a fair trial. I consider each of those cases now. The context in which the decisions were made in those cases was very different from the present one.

19.  (i) In Tuckiar v The King[18] following the defendant’s conviction, his counsel told the trial judge that the defendant admitted that the evidence of a prosecution witness of a confession made by the defendant was true. That was reported in the local press and “otherwise broadcasted throughout the whole area from which jurymen are drawn”. The High Court of Australia held that

“… it would be practically impossible for [the jury] to put out of their minds the fact of this confession by the accused to his own counsel, which would certainly be known to most, if not all, of them.”[19]

That is light years away from the present case. Even a judge would have difficulty putting out of his mind what the court was told in that case. Plainly there were no measures which could have been put in place to prevent the jury knowing at the retrial that the defendant’s confession had been acknowledged by the defendant himself to have been true.

20.  (ii) In R v McCann[20] the defendants elected not to give evidence. During closing speeches, the Home Secretary announced the Government’s intention to change a defendant’s right of silence. Considerable publicity followed that announcement, including radio and television broadcasts from a government minister and a former Master of the Rolls. Those interviews advocated allowing juries to draw inferences adverse to defendants who exercised their right of silence. The defendants’ application to the trial judge for the jury to be discharged was refused. The Court of Appeal in England concluded that the impact of the media coverage should have resulted in the discharge of the jury, but crucially for present purposes it also held that the judge should then have ordered a retrial. The only reason why the Court of Appeal did not order a retrial was that the Court of Appeal only had the power to do so by virtue of section 43 of the Criminal Justice Act 1988, and the defendants’ application for leave to appeal was lodged before that section came into force.[21] So the Court of Appeal must have thought that the prejudicial effect of the announcement and the interviews would have waned sufficiently by the time of any retrial for them to prevent the retrial from being unfair.

21.  (iii) In R v Taylor[22] press coverage during a trial was described by the Court of Appeal in England as “unremitting, extensive, sensational and misleading”. They said that it had created a real risk of prejudice against the defendants. That was one of the reasons why they quashed the convictions. They then had to decide whether to order a retrial. The Court simply said:

“… by reason of the view we take of the way in which this case was reported, we do not think that a fair trial can now take place.”[23]

It gave no other reason for thinking that a retrial would be unfair. The court reached this view without examining any of the authorities, or taking into account any of the principles referred to earlier in this judgment. With great respect, one wonders whether the court would have come to the same view today if those authorities had been brought to its attention, and if it had looked at the ways in which the risk of prejudice might be minimised.

22.  (iv) In R v Wood[24] the defendant was charged with possession of semtex, an explosive substance. During his trial, the press had carried articles on conviction rates in terrorist cases. In particular, there was a letter in the press about a terrorist who was caught red-handed with semtex. The defendant’s application to the trial judge for the jury to be discharged was refused. The Court of Appeal in England concluded that the jury should have been discharged, but having quashed the conviction for that and other reasons, it ordered that the defendant be retried. As in McCann, the Court of Appeal must have concluded that the prejudicial effect of the press coverage of terrorist cases would have waned sufficiently by the time of the retrial for the retrial to be fair.[25]

23.  I have referred to these four cases in the interests of completeness. But it is important to remember that what other courts have done in other cases on their own facts is no real guide to what the court should do in the present case. So long as I apply the applicable legal principles properly and fairly to the facts of the present case, what courts did in other cases is of little help. It is for that reason that I have noted – but paid little attention to – what the Court of Appeal said in HKSAR v Yip Kai Foon[26] about the exercise by the trial judge in that case of what it called his “discretion” in refusing an application for a stay of the trial on the basis of very adverse pre-trial publicity.

24.  The different types of prejudicial material. The reporting of a court case can take many forms. They will range from responsible journalism to the lurid and sensational. Some reports will only deal with what was actually said in court. Others may go further – perhaps containing the journalist’s views about some of the evidence, and maybe even expressing their own opinion of the guilt or otherwise of the defendant. Yet other reporting may concentrate on things which did not emerge in court. For example, the conviction of a defendant in a case which has received much public interest is sometimes seen as the green light for journalists to recount the defendant’s personal history, including interviews with people who knew him. Having said that, potential jurors are unlikely to have read reports in journals published overseas, and are likely to have forgotten reports in newspapers which were published some time previously. And when it comes to posts on online forums, they can range from the moderate to the ludicrous, though one has to assume that any potential juror who has read the more outrageous comments on online forums will see them for what they are.

25.  The application of these principles to Dr Khaw’s case. Dr Khaw’s solicitors and counsel have compiled a large amount of material from around the world showing how widespread interest in the case has been. These materials include press reports in newspapers and journals published in both Hong Kong and overseas and posts on online forums. I have read all those which are in English. The overwhelming majority of them, though, are in Chinese, a language with which I am not familiar. They have not been translated into English. I make no criticism of anyone for that. The prosecution rightly say that that was something for the defence to arrange: after all, these are materials on which the defence rely. The defence understandably say that they have limited funds, and those funds do not extend to providing translations of all the materials. However, the defence have provided translations of what they describe as “materials of particular importance”, and it has not been suggested that the other materials take the case any further. It is accepted that much of the press reporting was fair, and my focus has therefore been on the particular materials on which the defence specifically rely.

26.  I do not wish to make this ruling longer than it otherwise might be by summarising each of the materials on which the defence rely, and setting out what the defence and prosecution say about each of them. It is sufficient if I state that they are set out in paras 13-26 of the defence’s submissions dated 24 July 2024, and responded to in para 26 of the prosecution’s submissions dated 21 August 2024. I have read these submissions with care, and where the materials are in English, I have read them myself. Ten of these materials are in the form of videos. I have not watched them as they are all in Chinese, but I have nevertheless read what the parties say about them in their submissions.[27]

27.  I deal first with those materials which consist of reports in the press and other news media (including videos and YouTube). There are 36 of them.[28] It is apparent that very many of them were published or broadcast a long time ago – some at the time of Dr Khaw’s original conviction. None of them were published or broadcast recently. A few – seven in all – were published in 2023[29] and one in 2024. But the one published in 2024 (which was in English) was published in February 2024, and was a neutral report about the striking off of Dr Khaw from the Register of Medical Practitioners in the UK by the Medical Practitioners Tribunal.[30] The seven published in 2023 were in Chinese. They are apparently either a narrative of the salient features of the case or an explanation of the judgment of the Court of Final Appeal. Four of them compared Dr Khaw’s case with that of another academic whose conviction for the murder of his wife was quashed by the Court of Appeal. It is unsurprising that the two men were associated in this way: both were highly intelligent professional men who were either awaiting trial for, or had been convicted of, murdering their wives. One of the materials spoke of Dr Khaw’s “cold reaction towards his wife’s corpse” which “exposed the astounding plot”. Another said that if he was to be acquitted, his wife and daughter could not rest in peace.

28.  The last of these materials[31] is a video uploaded by a solicitor in November 2023 after Dr Khaw’s conviction had been quashed. It argued that Dr Khaw had been rightly convicted. Some of what was said referred to facts not given in evidence, as well as things which were plainly wrong, such as asserting that a stopper found in Dr Khaw’s home came from the yoga ball in the car, which was the very thing which the Court of Final Appeal held could not be inferred. In addition, uninformed comments from two members of the public to the effect that Dr Khaw was guilty were accepted in the video by the solicitor as correct.

29.  The rest of the materials in this category are from longer ago. All but five of them were in 2018 following Dr Khaw’s conviction.[32] In my opinion, all of these materials were published or broadcast or uploaded onto YouTube too long ago for them to be said to have left a lasting impression on the reader or viewer which cannot be offset by the measures to be adopted by the court. I have not overlooked that many of these materials are still accessible on the internet. In that sense, Mr Andrew Raffell for Dr Khaw was right to say: once published, never forgotten. But realistically, you tend to go onto the internet to search for something specific, and before this week it is doubtful if many of the potential jurors specifically searched for anything about Dr Khaw’s case.

30.  The other feature of those materials which consist of reports in the press and other news media (including videos and YouTube) is that some of them were published or broadcast overseas. It is possible, of course, that a potential juror read or saw one or more of them, but since they were all from 2018 the chances of that possibility leaving a lasting impression on that potential juror is remote, save in the unlikely event of them searching the internet for information about Dr Khaw’s case.

31.  Finally, it is right to acknowledge that many of these materials assume Dr Khaw’s guilt, and portray him – sometimes in colourful language[33] – as a heartless and cold-blooded killer. That is hardly surprising as he had been found guilty of a premeditated and callous crime in a court of law. In addition, there is in these materials speculation about what Dr Khaw’s motive was for killing his wife, an interview with his sister-in-law to the effect that Dr Khaw was someone who did not care about doing wrong so long as he was not caught, and comparing Dr Khaw with the “dark tradition” in Chinese history and culture of heroes killing their wives. But again they are all from 2018, and there is little chance for them to have left any lasting impression on the reader or viewer – save once again in the unlikely event of them searching the internet for details about this case – which a careful direction from the trial judge cannot counteract.

32.  The upshot of all this is that the pre-trial publicity is nothing like as bad as the defence claim. Much of it is a long time ago, and any potential juror who read or saw any of the materials is likely to have forgotten them. Some of them are from overseas, and it is unlikely that any potential juror would have read or seen them. The remaining seven which come into the category of reports in the press and other news media (including videos and YouTube) and which were published or uploaded towards the end of 2023 and in 2024 are still likely to have been forgotten by a potential juror, but in any event any residual effect which they may still have can, I am sure, be neutralised by the directions which I propose to give to the jurors.

33.  From the materials which consist of reports in the press and other news media (including videos and YouTube), I turn to posts on online forums. Nine sets of posts are relied on.[34] They are all in Chinese. The latest of them was in November 2023, but some of them dated back to 2018, 2021 and 2022. Again, some of these posts are from people who assume Dr Khaw to be guilty (which were all posted before the Court of Final Appeal’s judgment and therefore while his conviction still stood) while others compared Dr Khaw’s case with the other academic whose conviction for murdering his wife was quashed. The language in those of these posts which have been translated is highly charged, but again they were all posted some time ago, and jurors properly directed would appreciate that they are uninformed comments by people who simply did not know the full facts.

34.  Having said all that, the real vice in this case is said by Mr Raffell to be not just prejudicial reporting in the press and other news media, nor even in the limited number of uninformed posts on online forums. There are in addition the literally thousands of comments on social media about the case which the defence knows nothing about. Anecdotal information which Mr Raffell says both he and the defence team as a whole have received is said to show that these comments are ludicrous, bigoted and uninformed with the result that there is a widespread belief throughout Hong Kong that Dr Khaw is guilty. It is said that it would now be impossible to find anyone in Hong Kong whose mind was not so “clogged with prejudice”[35] as to enable them to try Dr Khaw fairly.

35.  It is not possible for me to judge how widespread such comments on social media are, but I am prepared to assume that they are both extensive and uninformed, and that they portray Dr Khaw in a very bad light. Again, that is not all that surprising when one remembers that he was indeed a convicted double murderer between September 2018 when he was convicted and November 2023 when his conviction was quashed. But I repeat what I said earlier. The language of these comments may be highly inflammatory, but I believe that the jurors, properly directed, would appreciate that they are uninformed comments by people who simply did not know the full facts.

36.  Reluctant witnesses. In the course of his oral submissions, Mr Raffell advanced a new reason why a stay of the retrial was being sought in the light of the pre-trial publicity. It had resulted, he said, in some of the witnesses being targeted by vicious trolling on social media, to the extent that they may be unwilling to give evidence. Three examples were given: Siti Maesaroh (the Khaw family’s domestic helper), Dr Khaw’s daughter May, and Dr Victor Cheong, a friend of Dr Khaw in Malaysia, who gave character evidence on behalf of Dr Khaw at the first trial.

37.  On looking at these examples, the position is not as clear cut as Mr Raffell implied. Take Siti. She is now back in Indonesia where she comes from. A few months ago she was in touch with the prosecution about whether she needed to return to Hong Kong for the retrial. But that does not appear to have been because she had been the target of trolls. She was pregnant, and due to give birth at the beginning of this month. In fact, she has now had her baby, and will be giving evidence from Indonesia via a live TV link.

38.  As for May, she is said to be very depressed. That is not surprising. She is to be a witness for the prosecution in a case in which her father is accused of having murdered her mother and younger sister. But the fact that she may be very depressed does not mean that she is unwilling to attend court and give evidence.

39.  The position with Dr Cheong is unclear. He has not been in contact with Dr Khaw’s solicitors for some time. But even if we assume that he is not willing to come to Hong Kong to give evidence for Dr Khaw because he has been the victim of trolling, there are measures which can be adopted to undo the damage. For example, the prosecution would no doubt co-operate with the defence to agree a suitable summary of Dr Cheong’s evidence at the first trial, and the jury could be told to treat it as his evidence in the retrial.

40.  The measures to avoid prejudice. The prosecution has suggested that all that is needed is for the jurors to be given a strong direction about the need to put out of their minds anything they may have read about the case in the past, coupled with the standard direction not to do any research of their own in the future. It would be wrong in principle, they say, to question potential jurors beforehand about what they know about the case. To do that would be inconsistent with the practice in many other common law jurisdictions which have trial by jury, including England[36], Scotland[37], Australia[38] and New Zealand[39]. Various reasons were given for that. In one case, it was said that it “may well produce the consequence which both sides wish to avoid, namely it may bring to the jury’s attention the matter which the parties and the court wish the jury to disregard”.[40] In another, it was said that questioning jurors “may lead the jurors to think that the community’s confidence in their impartiality and sense of responsibility is heavily qualified.”[41] And in another, it was said that the relatively anodyne questions which it was proposed to ask the potential jurors amounted to “intrusive, inconclusive and time-consuming inquiries which an inquisition of that kind would introduce into jury balloting.”[42]

41.  In only one case have questions been put to the jury to weed out those jurors who might have been influenced by any adverse pre-trial publicity. That was R v Kray. In that case, Kray, a well-known gangster, was indicted for murder only six weeks after he had been convicted of another murder, a conviction which was widely reported because of his notoriety. The trial judge, Lawton J (as he then was), permitted the potential jurors to be questioned in order to establish whether there existed grounds to challenge any juror for cause, namely the possibility that the juror’s mind would be so “clogged with prejudice” as to make it impossible for them to try Kray fairly. Lawton J described the course he was taking as “wholly exceptional”. I can understand why. There is really no comparison between that case in which most, if not all, of the jurors would have known that the man they were trying for murder had recently been convicted of another murder and the present one.

42.  Despite all this, Mr Raffell has suggested that the jury panel should be asked whether they have any views about the guilt of Dr Khaw, whether they have seen or read anything about the case (whether in the press, on television, on YouTube, on the internet, on online forums and in social media), whether they are on social media themselves (for example, Facebook, Instagram or X), whether they have strong views on adultery (because the fact that Dr Khaw was having an affair is going to emerge in the evidence), and whether they have strong views on experimentation on animals. I am not prepared to permit that. It would be inappropriate for all the reasons given in the cases to which I have already referred. It would be as close to a vetting system of jurors as you could get, and the whole point of the jury system is that that the jury represents the community selected at random. What I shall be doing, though, is to give the jurors clear and strong directions to put out of their minds anything they may have seen or read about the case.

43.  I should add one thing to that. Is there anything which the jurors should be told about the history of this case? Mr Jonathan Man for the prosecution says not. A strong direction to the jurors to put out of their minds anything which they may have seen or read about the case would be sufficient. I do not agree. As I said earlier in this judgment, it is likely that all – or at least nearly all – of the jurors will have seen, read or heard something about this case. Not telling them something about it would be like the elephant in the room: everyone knows it’s there, but no-one talks about it. If anything, it could tempt the jurors to go onto the internet to find out more about the case, despite a strong direction from me not to. That, I think, would be far less likely to happen if I was frank with the jury and told them that Dr Khaw has already been tried and convicted, but that the appeal courts said that he had not received a fair trial. I will not tell the jury, of course, what it was which caused his convictions to be quashed, but I will make it clear to the jurors that we are starting again afresh with a blank sheet, and the fact that Dr Khaw was convicted earlier at a previous trial is completely irrelevant because the evidence may have been very different from the evidence that the jury will hear in the retrial and the unfairness which infected the first trial will be removed. I will draft something appropriate and run it past Mr Man and Mr Raffell.

44.  Conclusion. In these circumstances, I am as confident as I can be that despite the pre-trial publicity which the case has inevitably attracted, but with a strong direction from me, Dr Khaw can get a fair trial.

C.  The destruction of the yoga ball

45.  The circumstances of its destruction. Prior to the first trial, Dr Wong Koon Hung, a forensic government chemist, conducted experiments on the yoga ball. He wanted to find out what the diffusion rate of carbon monoxide was. In other words, how quickly would the carbon monoxide dissipate once the yoga ball had been placed in the car and the stopper removed? That was relevant to what was called “the timeline defence”. That was that the diffusion rate was said to be so quick that the yoga ball must have been put into the car shortly before Dr Khaw’s wife and daughter left their house. That was said to show that it could not have been Dr Khaw who had put it there as he had been teaching at the time. The yoga ball burst during one of these experiments, and the tear in it meant that no more experiments on it could be carried out.[43]

46.  The defence say that Dr Khaw cannot now get a fair trial because (a) they cannot conduct their own experiments on the yoga ball and (b) they cannot conduct any demonstration on the yoga ball in front of the jury. That was the position at the first trial, and yet the defence did not apply for a stay then. The most that can be said about that is that Dr Khaw’s original defence team did not think that an application for a stay would be justified, but that does not, of course, preclude the current defence team from taking the point now. I shall therefore ignore what Dr Khaw’s previous lawyers may have thought about the validity of the point.

47.  The significance of the loss of the opportunity to conduct experiments on the actual yoga ball depends on whether experiments on yoga balls of the same type would have made any difference. At the first trial, the defence called Professor Li Chi Kwong, an engineer at the Hong Kong Polytechnic University. His evidence was that he had experimented on yoga balls of the same type as the one in the car in which Dr Khaw’s wife and daughter were found. He gave evidence about just one area in which conducting experiments on different yoga balls might have produced different results from experiments on the yoga ball in question if it had been available. That related to its elasticity. In cross-examination he was asked whether he had compared the elasticity of the yoga balls which he was experimenting on with the elasticity of the yoga ball in question. What he actually said, though, was that it did not matter what their comparative elasticity was because the yoga ball in question could not be both fully inflated and squeezed into the boot of the car. It had not been disputed that a fully inflated yoga ball of the type and size of the yoga ball in question would not fit into the car with its tailgate closed. It could only do so with a quarter to a third of the gas in it let out. In other words, Professor Li’s inability to test the elasticity of the yoga ball in question could not affect any of his conclusions.

48.  The defence say that at one point in his cross-examination Professor Li accepted that there were bound to be differences once the experiments were conducted on other yoga balls. I have read the passages in the transcript of Professor Li’s evidence at the first trial where the defence say that can be found.[44] I do not think that those passages say that at all. In short, I do not think that the inability of the defence to conduct experiments on the actual yoga ball is close to justifying a stay of the prosecution.

49.  I should add that the defence say that Professor Li was mocked – indeed ridiculed – by counsel for the prosecution at the first trial for not using the actual yoga ball for his experiments. If that is so, it was quite wrong. He could not use the actual yoga ball since it had been damaged. But that would be a reason for preventing counsel for the prosecution from cross-examining Professor Li to the same effect in the retrial, rather than staying the prosecution altogether. As it is, Mr Man (who was not counsel for the prosecution at the first trial) confirmed that he would not be cross-examining Professor Li on that basis.

50.  Finally, I turn to the inability of the defence to conduct a demonstration in front of the jury. I was not told the nature of the demonstration which they would otherwise have wanted to carry out. But whatever they would have wanted the demonstration to show, I was not told why such a demonstration cannot be carried out with a yoga ball of the same type and size as the actual yoga ball found in the car. Without being told that, I cannot say that the inability of the defence to carry out a demonstration in front of the jury with the actual yoga ball would justify the staying of the prosecution.

D.  Conclusion

51.  For these reasons, this application for a stay of the retrial must be dismissed.