SECRETARY FOR JUSTICE v. CHENG KAM MUN

HCMP 2916-2932/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NOS 2916-2932 OF 2015

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(Heard together)

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D E C I S I O N

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INTRODUCTION

1.  The issue that I have to decide is whether to give a direction that all affidavits or affirmations filed on behalf of the Secretary for Justice shall stand as the evidence in chief of the deponents at the trial of these committal proceedings provided that the deponents do attend the trial to be cross-examined on their affidavits or affirmations by the respondents.

2.  The above direction is sought by Mr Victor Dawes SC on behalf of the Secretary for Justice as the applicant in these proceedings and supported by Mr Gerard McCoy, SC on behalf of his clients in HCMP 2916, 2922, 2923 and 2926 of 2015, but objected to by (i) Mr Earl Deng on behalf of his clients in HCMP 2917, 2920 and 2921 of 2015, (ii) Mr Man Ho Ching (adopting the written submissions prepared by counsel, Ms Christine Yu) on behalf of his clients in HCMP 2928, 2929, 2931 and 2932 of 2015, and (iii) the respondents in HCMP 2918 and 2925 of 2015.  The remaining respondents adopt, I understand, a neutral position on this matter.

DISCUSSION

3.  The background facts to these proceedings are well known to the parties and I do not propose to set them out again in this decision.

4.  On behalf of the Secretary for Justice, Mr Dawes submits that the direction sought should be given for the following reasons:-

(1)   The court has clear power to give such direction in view of the confirmation by the Court of Appeal in Secretary for Justice v Cheung Kai Yin [2014] 4 HKLRD 367, at paragraph  35, that the Rules of the High Court are generally applicable to proceedings for criminal contempt.

(2)   A similar direction was given in what are referred to as the “Taxi Cases” by consent, and there is no rational basis for not giving the same direction in the present group of cases.

(3)   The current estimated length of trial of 40 days is put forward on the basis that the affidavits or affirmations of the deponents will stand as their evidence in chief.  If the deponents are required to give oral evidence in the traditional manner, it is estimated that an additional 15 to 20 days will be required for the trial.

(4)   There is no clear or intelligible reason why the deponents should be required to give evidence in chief in the traditional manner.  None of the respondents has indicated which paragraphs of their affidavits or affirmations, or which areas of their evidence, are likely to be disputed.  Neither has any of them been able to explain what tactical or other advantage he or she may obtain by requiring the deponents to give evidence in chief in the traditional manner.

(5)   Lastly, the mere fact that the credibility of a witness may be in issue does not necessarily mean that his or her witness statement should not be allowed to stand as his or her evidence in chief (see Bam Ganesh v Hussain Maroof, CACV 47/2007, 16 July 2008, at paragraph 18 per Le Pichon JA).

5.  In my view, of the 5 reasons advanced by Mr Dawes, the important ones are the third and fourth reasons mentioned above.  The fact that the court has power to give the direction sought is not a reason for the exercise of such power. Also, the fact that a similar direction was given in the Taxi Cases by consent cannot of itself be a good or sufficient reason for giving the same direction in the present set of cases.  I accept, however, that the efficient administration of justice and the promotion of the underlying objectives of the Civil Justice Reform are good reasons for giving the direction sought by the Secretary for Justice.  These considerations are, in my view, as relevant to proceedings for criminal contempt as they are to ordinary civil litigations.

6.  I shall deal with a number of objections to the direction sought by the Secretary for Justice which have been raised by Mr Deng, Mr Man and some of the respondents acting in person.

7.  First, it is said that the Secretary for Justice should, instead of seeking the direction, put forward agreed facts to the respondents for their consideration and use his prosecutorial discretion to identify witnesses who are necessary to prove his case so as to limit the number of witnesses required to give evidence at the trial.  While I agree that it would be helpful for the Secretary for Justice to propose agreed facts with a view to them being agreed by the respondents and to limit the number of witnesses as much as possible so that the trial may be shortened, I do not consider these matters to be valid grounds to object to the direction now being sought by the Secretary for Justice.  Irrespective of whether the affidavits or affirmations shall stand as the evidence in chief of the deponents, there is no obstacle to the agreement of undisputed facts or the limitation of witnesses.

8.  Second, it is said that the respondents are not required to disclose or give any indication of their defence, because these are proceedings for criminal contempt with penal consequences.  Hence, the Secretary of Justice’s fourth reason mentioned above has no force or validity.  Granted that the respondents are entitled, as a matter of right, not to disclose their defence, it is a matter entirely for them to decide whether to exercise such right.  If they choose to exercise the right of silence, the court can only make a decision on the basis of the materials and arguments now before the court, and determine whether, in the interest of justice, the affidavits or affirmations of the deponents filed on behalf of the Secretary for Justice should be allowed to stand as their evidence in chief.

9.  Third, it is argued that the present cases and the facts in issue are identical to summary offences of a criminal nature, and safeguards in the criminal trial process to ensure the integrity and fairness of the system should be followed. I have been referred to a number of Australian authorities which explain the rationale behind the usual rule or practice of requiring witnesses to give their evidence orally in criminal trials.  It is a fact, however, that the respondents are not currently being charged with any summary offences. It is also now clear that the present contempt proceedings are civil causes or matters (see Secretary for Justice v Cheung Kai Yin [2014] 4 HKLRD 367, at paragraph 35).  As I see it, in considering whether to allow the affidavits or affirmations of the deponents to stand as evidence in chief, what is critical is not whether the present committal proceedings should be treated as being civil or criminal in nature, but whether the respondents will suffer any real prejudice as a result of the direction and whether the fairness of the trial will be compromised.  It is, in my view, important that the direction will have no effect on the right of the respondents to fully cross-examine the deponents on their affidavits or affirmations.  It has not been suggested or shown that any particular prejudice will be suffered by the respondents as a result of the direction, or that the trial process will be rendered unfair by permitting the deponents to adopt their affidavits or affirmations as their evidence in chief.

10.  Lastly, it is argued that requiring the witnesses to give evidence in chief orally will promote the public interest of transparency of the proceedings.  I am given to understand by Mr Dawes (which I consider to be a fair observation) that a large part of the case for the Secretary for Justice will be presented by video evidence and not the oral evidence of witnesses.  It is clear to me that the trial of these applications will be fully reported in the media.  I do not believe that the transparency of the proceedings will be compromised by giving the direction sought by the Secretary for Justice.

11.  In my view, whether the direction sought by the Secretary for Justice should be given is ultimately a matter of case management.  I consider that I ought to arrive at a result which would promote the efficient administration of justice while seeing that the respondents will not suffer any real prejudice in the conduct of their defence.  I believe that a proper balance can be achieved by giving the direction sought by the Secretary for Justice but subject to an express proviso that the trial judge may direct the evidence in chief of any particular witness (in whole or in part) to be given orally.

Disposition

12.  I give the following directions:-

(1)   all 17 applications now before me shall be heard together;

(2)   the Secretary for Justice shall have leave to fix dates for the trial of the 17 applications in consultation with counsel’s diary, with 40 days reserved;

(3)   there shall be a pre-trial review to be held on a date not earlier than 10 weeks and not later than 6 weeks prior to the commencement of the trial, with 1 hour reserved; and

(4)   subject to such direction as may be given by the trial judge that the evidence in chief of any particular witness (in whole or in part) shall be given orally, the affidavits or affirmations filed by the Secretary for Justice in these 17 applications shall stand as the evidence in chief of the deponents provided that they attend the trial to be cross-examined by or on behalf of the respondents.

13.  I also make an order nisi that the costs of the application be in the cause, with certificate for 2 counsel where applicable.

14.  The respondents’ own costs, in so far as they are legally aided, are to be taxed in accordance with legal aid regulations.