HKSAR v. CHEUNG WAI CHING AND OTHERS

DCCC 239/2021
DCCC 237/2021

[2022] HKDC 261

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 239 OF 2021

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 237 OF 2021

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RULING ON THE PROSECUTION’S
APPLICATION FOR CONSOLIDATION

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A.    INTRODUCTION

1.  This is the prosecution’s application for consolidation of these two cases:-

(a)     DCCC 239/2021 has been set down for a 25-day trial commencing on 1 June 2022; and

(b)     DCCC 237/2021 has been set down for a 35-day trial commencing on 13 July 2022.

2.  The 19 defendants involved in these two cases took the following stance:-^[1]

(a)     10 voiced their objections;^[2]

(b)     7 took a neutral stance;^[3]

(c)     one was equivocal;^[4] and

(d)     one expressed no view.^[5]

3.  The application was originally set down for a hearing on 18 March 2022.  As a result of the General Adjournment of Proceedings between 7 March 2022 and 11 April 2022 due to the COVID-19 pandemic (“GAP”),^[6] the hearing could not be proceeded with. 

4.  Given the imminence of the trials, it is undesirable to defer the matter. Pursuant to my directions, the parties have put in written submissions to facilitate paper disposal. 

B.    BRIEF CHRONOLOGY OF THE PROCEEDINGS IN THE DISTRICT COURT

5.  The defendants were among the 46 defendants arrested in relation to the incident(s) that happened on 29 September 2019 outside Central Government Offices in Admiralty.  They are all charged with one count of riot and some of them are also charged with other offences.

6.  On 4 June 2020, all 46 defendants were brought to the District Court in two separate cases (DCCC 288/2020 & DCCC 293/2020).  The proceedings were adjourned as they invariably required time to apply for legal aid, obtain discovery of evidence from the prosecution and take legal advice.

7.  At the second hearing on 12 August 2020, the prosecution and the defendants jointly sought an adjournment so that they might attend to outstanding matters.

8.  At the third hearing on 23 October 2020, three defendants indicated they would plead not guilty to the respective charge(s) against them and their case was carved out from the rest and set down for trial in May 2021 (subsequently assigned the case number DCCC 969/2020).  The other defendants were still not ready.

9.  At the fourth hearing on 22 January 2021, two defendants indicated they would plead guilty and their case was set down for plea and sentence in May 2021 (retaining the original case number of DCCC 288 & 293/2020).  The remaining 40 defendants (excluding the one who has absconded) all pleaded not guilty.  The presiding judge approved the trial proposal submitted by the prosecution which was not objected to by the defence.  She consolidated the two cases then before the court before severing them into 4 trials as follows:-^[7]

(a)     DCCC 239/2021 involving 11 defendants was set down for a 25-day trial to commence on 1 June 2022;

(b)     DCCC 237/2021 involving 8 defendants was set down for a 35-day trial to commence on 13 July 2022;

(c)     DCCC 238/2021 involving 9 defendants was set down for a 30-day trial to commence on 5 September 2022; and

(d)     DCCC 240/2021 involving 12 defendants was set down for a 30-day trial to commence on 17 October 2022.

10.  The present application concerns (a) and (b), and the prosecution has made a similar application respecting (c) and (d).

C.    THE APPLICATION

11.  The application is supported by two submissions:-

(a)     the letter dated 11 February 2022 (“the Letter”); and

(b)     the written submissions dated 15 February 2022 (“the Submissions”).

12.  The prosecution made the following general observations in the Letter:-

“(a) Cases arising from the same or related episode(s) of riot or factual background have been severed from one single case into as many as more than twenty separate cases;

(b) As a result of the perceived difficulties of the court and/or defence to handle cases involving large number of defendants, it is noted that such cases have been severed into separate trials involving, on average, ten or so defendants;

(c) Such perceived difficulties can now be re-assessed in light of the substantive effort to provide facilities for expediting hearings made by the Judiciary as aforementioned. Bearing in mind ‘justice delayed is justice denied’, fairness of trial can be achieved by timely disposal of cases. It is noted that a recent trial involving as many as 23 defendants was ably handled and concluded in the District Court (HKSAR v Cheung Chi Lun and others [2021] HKDC 1388). Moreover, the Court has permitted the Prosecution to consolidate three cases involving a total of 20 defendants (HKSAR v Chan Tung Shing and others [2021] HKDC 1422);

(d) Due to the uneven number of defendants who are involved in the same or related episode(s) of riot or factual background, there are severed cases with defendants as few as 5 in number. In some instances, substantial trial dates up to 35 dates have been allocated to separate trials with fewer numbers of defendants all arising from the same factual background. Public resources and manpower would be unnecessarily incurred from the public funds to conduct such severed trials, which have the same (if not identical) factual background likely to involve same witnesses and evidence;

(e) Further, these severed trials take place in close proximity of time or are even substantially overlapped.  Some if not most of the factual background are unlikely to be in dispute.  In any event, the evidence as to the factual background has to be repeatedly adduced in severed trials to be heard by different or even the same trial Judges.  Again public resources and manpower would be unnecessarily incurred.”

13.  The prosecution expected that as a result of the authoritative guidance provided by the Court of Final Appeal in HKSAR v Lo Kin Man; Secretary for Justice v Tong Wai Hung [2021] HKCFA 37, trials on the offences of riot and unlawful assembly could be more focused and the trial dates originally allotted to some of the severed cases could be revisited and reduced.

14.  In the Submissions, the prosecution made the following points:-

(a)     The application is premised on a change of circumstances since the trials were set down.

(b)     There are recent cases in the District Court involving many defendants. For example, the trial in HKSAR v Cheung Chi-lun and others involved 23 defendants, and the court has set down HKSAR v Ho Ying-kit DCCC 313 & 573/2021 for trial involving 19 defendants.

(c)     In 香港特別行政區訴吳肇韜及另19人[2021] HKDC 1422,[8] the court approved the prosecution’s application to consolidate three cases involving 20 defendants for trial.

(i)     Drawing on para 11 of the decision, consolidation of the present two cases would achieve saving of court time and more focus on the issues as the prosecution witnesses would not have to testify repeatedly and subject to cross-examination at different trials.

(ii)     Drawing on paras 12 and 15 of the decision, consolidation of the present two cases would enable the court to take a more comprehensive view of the incident(s) as there would be more evidence when more defendants are on trial.

(iii)     The learned Judge also confirmed that: any District Judge could handle a case involving as many as 20 defendants (para 14); public money would be saved if consolidation was ordered (para 16); the Judiciary has been working on constructing larger courtrooms (para 19); and other case management matters could be left to the trial judge (para 21).

(d)     The prosecution proposes the consolidated trial to take place within the time period originally allocated to the two trials, ie between 1 June 2022 and 30 August 2022.  It is said that the proposal would avoid the need to re-fix the trials and pose minimal inconvenience to the defence counsel. 

(e)     The defendants would not be prejudiced by the proposed consolidation as there is considerable time left before the consolidated trial for defence counsel to take instructions or for the Director of Legal Aid to reassign counsel if necessary. 

D.   THE OBJECTIONS

15.  The defence submitted the following objections:-

(a)     These cases were set down for trial over a year ago.  Counsel have established rapport with their respective clients and trial preparation has gone into an advanced stage.  With the trials just weeks away, ordering consolidation at this late stage would cause much disruption and prejudice to the defence.

It would be unfair to require any of the defendants to find alternative legal representation at this late stage.  And it is doubtful whether there is still sufficient time for new legal representatives to take instructions given the voluminous evidence involved (including around 1,000 pages of documentary exhibits, around 400 pages of witness statements and around 80 GB of videos).^[9]

(b)     These trials were set down in January 2021.  The trial in HKSAR v Cheung Chi-lun and others took place between February and July 2021 and the decision in 香港特別行政區訴吳肇韜及另19人was handed down in November 2021.  This application was only made in February 2022.  There is inordinate and inexcusable delay on the part of the prosecution in making the application. ^[10]

(c)     Trial dates are a milestone, which should not be disturbed unless there are overriding and exceptional circumstances.^[11]

(d)     The decision to set down the cases for trial separately is a case management decision.  On the authority of HKSAR v Siu Yat Leung [2002] 2 HKLRD 147 at para 13, the court should not revisit the decision unless the prosecution could establish “a material change in relevant circumstances”.  As held in Roult v North West Strategic Health Authority [2010] 1 W.L.R. 487 at para 15, “… in the context of essentially case management decisions, the grounds for invoking the rule will generally fall into one or other of the two categories of (i) erroneous information at the time of the original order or (ii) subsequent event destroying the basis on which it was made.  The exigencies of case management may well call for a variation in planning from time to time in the light of developments.  There may possibly be examples of non-procedural but continuing orders which may call for revocation or variation as they continue – an interlocutory injunction may be one.  But it does not follow that wherever one or other of the two assertions mentioned (erroneous information and subsequent event) can be made, then any party can return to the trial judge and ask him to reopen any decision.” 

When these two cases were set down, the court must have the trial of HKSAR v Cheung Chi-lun and others in mind as it had been set down some time ago.  And the decision in 香港特別行政區訴吳肇韜及另19人has no binding effect and does not constitute either of the abovementioned assertions (erroneous information and subsequent event). Having regard to R v Novac (1977) 65 Cr App R 107 at p 118 and R v Kellard [1995] 2 Cr App R 134 at pp 145 & 161, there is no absolute necessity to consolidate the trials.^[12]

(e)     The parties had considered matters such as common witnesses and “justice delayed is justice denied” etc in coming to the present trial arrangement. Save for exceptional and material change in circumstances which renders the original decision to split the trial superfluous and nugatory, the court should not lightly disturb the arrangement for fear of producing undesirable butterfly effect on the stakeholders.^[13]

(f)     These cases were severed at an early stage, in accordance with the prosecution’s proposal, upon various considerations including physical logistic considerations, availability of court facilities and space, complexity of trial involving large number of defendants, as well as public health safety which remains paramount.  Just weeks before the commencement of the first trial, the prosecution has changed its stance on a whim.  Nothing has changed save that the pandemic in Hong Kong has worsened.  Given the prevailing public health situation, the GAP announced by the Judiciary and the possibility of compulsory universal testing in Hong Kong, there is no justification to consolidate the cases.^[14]

(g)     If the application is allowed, there will be significant changes to the trial dates.  The task of accommodating the diaries of so many counsel as well as the heavy hearing schedule of the court is phenomenal.^[15]

(h)     If any of the assigned counsel has to return brief for the Director of Legal Aid to re-assign counsel, there will be wastage of public money in terms of the costs of both the incoming and outgoing counsel.^[16]

(i)     The defence welcomes discussion if the prosecution considers the original trial estimation excessive.^[17]

(j)     The fact that the court conducted a trial involving 23 defendants in HKSAR v Cheung Chi-lun and others does not mean that mass trials should become a norm.^[18]

(k)     香港特別行政區訴吳肇韜及另19人was decided in November 2021 before the outbreak of the 5th wave of COVID-19 in Hong Kong.^[19]

(l)     The prosecution’s proposal does not have the effect of bringing forward a trial from the distant future.^[20]

(m)     The recent COVID-19 outbreak has caused a criminal trial in the District Court to overrun by as many as 15 days as some of the defendants and legal representatives were unable to attend court due to infection.  The proposal to hold a mass trial would magnify the risk of such happening here and the danger of overrunning the trial should not be overlooked.^[21]

E.    THE REPLY

16.  In its reply dated 17 March 2022 (“the Reply”), the prosecution summarised the objections into the following issues:-

(a)     There is no good reason or material change of circumstances that justifies changing the present trial arrangement which was the result of extended discussion amongst the parties.

(b)     The present trial dates were fixed well in advance.  Any changes would disrupt counsel diaries and some counsel may even have to return brief.

(c)     The increased public health risk associated with the mass trial proposed by the prosecution.

(d)     The applicability of HKSAR v Siu Yat Leung and Roult v North West Strategic Health Authority.

17.  I shall discuss these issues in turn below but not necessarily in that order.

F.    DISCUSSION

F1.    What is the applicable test?

18.  I agree with the prosecution that HKSAR v Siu Yat Leung and Roult v North West Strategic Health Authority cited by the defence are not applicable.

(a)     One of the issues canvassed in HKSAR v Siu Yat Leung was whether the Court of First Instance (“CFI”) has inherent jurisdiction parallel to Part IA of the Criminal Procedure Ordinance, Cap 221, to grant bail.  In para 12 of that decision, the learned Deputy Judge ruled that the CFI does have the jurisdiction.  He went on, in the passage cited by the defence here, to remind applicants that they need to establish “a material change in relevant circumstances” before they may bring themselves within such jurisdiction. Thus, the decision has nothing to do with the situation at hand – changing the trial date after the case was set down for trial.

(b)     Roult v North West Strategic Health Authority relates to the power of the English civil court to revoke or vary the terms of a prior settlement approved by the court under CPR r 3.1(7), which has no application in this jurisdiction.

19.  On the other hand, the defence refers to the trial dates as a “milestone”. That is a concept borrowed from Practice Direction 9.3.  Para 1.4 thereof, entitled “Milestone dates”, provides that:-

“1.4.1 For the purpose of this Practice Direction, the following are milestone dates which cannot be vacated or adjourned unless justified on sufficient grounds with the approval of the court:

(1) Plea and Sentence Hearing;

(2) Case Management Hearing;

(3) Pre-trial Review;

(4) trial; and

(5) any other milestone date as may be set by the court.

1.4.2 An application to vacate or adjourn a milestone date must be made:

(1) in writing setting out all the grounds in support and, where applicable, attaching all the documents relied upon; and

(2) in good time before the milestone date, and in any event, not less than 7 days before the milestone date.

1.4.3     Unless otherwise justified, which should be rare, the court will not entertain an application to vacate or adjourn a milestone date which is only made on the date in question.”

20.  Practice Direction 9.3 represents the practice and procedure currently in force in criminal proceedings in the CFI.[22] Although Practice Direction 9.3 is not expressed to apply to the District Court, section 79(1) of the District Court Ordinance, Cap 336, provides that:-

“Subject to the provisions of this Ordinance and as may be prescribed, the procedure and practice for the time being in force in the Court of First Instance in relation to criminal proceedings therein shall, so far as the same may be applicable, be followed as nearly as may be in criminal proceedings in the Court…”

Thus, I am directed by legislation to follow the practice and procedure of the CFI in the District Court as nearly as possible. 

21.  The trial is arguably the single most important event in the criminal process.  It is through the due process of a trial that the guilt or innocence of an accused is determined.  Trial dates are usually set well in advance so that both the prosecution and the defence may have time to prepare.  By treating the trial as a milestone, the court expects both parties to do all that is necessary to ensure that the trial will come on as scheduled. 

22.  Changing the trial date, especially late changes, may disrupt the parties’ preparation.  That is why Practice Direction 9.3 directs that it “cannot be vacated or adjourned unless justified on sufficient grounds with the approval of the court”. 

23.  The present application has the effect of changing the trial dates of both cases.  In my view, I should adopt the test in Practice Direction 9.3 and examine whether there is sufficient justification to change the trial dates.

F2.    What is the justification put forward by the prosecution?

24.  As I understand it, this application is premised on the following:-

(a)     the trial in HKSAR v Cheung Chi-lun and others involving 23 defendants, which took place after the setting down of these trials;

(b)     the decision in 香港特別行政區訴吳肇韜及另19人, which was handed down in November 2021; and

(c)     improved facilities at the District Court to accommodate mass trial.

F2.1  HKSAR v Cheung Chi-lun and others

25.  For the purpose of this application, I have listened to the digital recording of the fourth hearing (on 22 January 2021) when these cases were set down for trial.  The presiding judge simply accepted the prosecution’s proposal to split the defendants into four groups for trial as there was no objection from the defence.  No one mentioned about the then pending trial of HKSAR v Cheung Chi-lun and others.

26.  Although the trial of HKSAR v Cheung Chi-lun and others only came on after that hearing, that case was set down for trial as early as in May 2020.  That fact was noted in the prosecution’s report for the third hearing (on 23 October 2020).  On that occasion, the prosecution also mentioned other examples of mass trials held in or pending before the District Court. Notwithstanding the examples cited, the prosecution already suggested splitting the defendants into four groups. ^[23]

27.  Thus, it may not be said that the presiding judge had omitted to consider the possibility of holding a mass trial or that such possibility had escaped the parties.

F2.2  香港特別行政區訴吳肇韜及另19人

28.  The prosecution drew heavily on this decision, in which the learned Judge comprehensively discussed the objections and practical concerns raised by the defence before approving the prosecution’s application to consolidate 3 cases to enable a trial involving 20 defendants to proceed.

29.  The decision should be read in context.  The learned Judge was contemplating a trial not before mid-2023 (para 18).[24]  That was why he was confident that:

“到那一個時刻,本席相信疫情經已解決。” (para 18)

“因此,連同在西九龍法院大樓的大面積法庭,本席肯定在這3宗案件開審時,司法機構可以提供合適的法庭讓全部被告同時接受審訊。” (para 19)

“就著全部20名被告一起審訊可能引起審訊排期的困難,本席相信這一點沒有重要性。由於這3宗案件不論是同案或分案審訊, 審訊不可能在半年之內進行。因此,假若辯方大律師的工作時間表經已排滿,他本人或透過事務律師有足夠的時間替他負責的被告安排替代他的人選。” (para 20)

Here, the prosecution is proposing to hold the consolidated trial between June and August 2022, just a few months away.

 F2.3 Improved facilities at the District Court to accommodate mass trials

30.  In a paper dated October 2021 tabled before the Panel on Administration of Justice and Legal Services of the Legislative Council,[25] the Government mentioned that:-

“8. The sudden upsurge of cases arising from opposition to the proposed legislative amendments has brought unprecedented challenges to the Judiciary in terms of court facilities and judicial resources. Operational experience indicates that arrangements for cases arising from opposition to the proposed legislative amendments tend to be more complex, mainly because quite a number of them involve a large number of defendants, legal representatives, media and public viewers, and evidence in the form of voluminous video recordings…

9. Given the limited number and capacity of existing courtrooms suitable for criminal cases, most of which were designed for cases with less than ten defendants, the Government has supported the Judiciary in the completion of conversion works for enlarging the capacity of ten existing DC courtrooms so as to accommodate up to ten or slightly more defendants (from six previously), and one existing mega courtroom at the West Kowloon Law Courts Building so as to accommodate up to 54 defendants (from 12 previously). In addition, with the support of the Government, the Judiciary has recommissioned the Tsuen Wan Law Courts Building in October 2021 for hearing general criminal cases of the DC so as to free up the larger DC courtrooms at the Wan Chai Law Courts Building for cases arising from opposition to the proposed legislative amendments.

10. To further address the Judiciary’s need for additional court facilities to expedite processing of cases arising from opposition to the proposed legislative amendments, the Government supports the Judiciary’s initiative to construct four courtrooms (including one mega courtroom that may accommodate up to 50 defendants) and associated facilities in the Wanchai Tower during the interim years before the commissioning of the proposed new DC building at Caroline Hill Road (“CHR”). Preparatory work for the project is actively underway. It is expected that the construction works in the Wanchai Tower will start inMay 2022 for completion in mid-2023.”

31.  Contrary to the contemplation of the prosecution:-

(a)     The enlarged courtrooms at the District Court cannot accommodate the proposed consolidated trial involving 19 defendants.

(b)     The enlarged mega courtroom at the West Kowloon Law Courts Building has been reserved for other trial(s) for the period proposed for the consolidated trial.

(c)     The mega courtroom in the Wanchai Tower is yet to be built.

32.  For present purpose, the improved facilities at the District Court will not avail the prosecution.  I am also given to understand that the courtrooms in the West Kowloon Law Courts Building where the trial of HKSAR v Cheung Chi-lun and others took place are also not available over the period proposed by the prosecution for the consolidated trial.

F2.4  Deliberation

33.  The court prompted the parties to consider and discuss the logistics of trial when they first appeared in the District Court.  Pursuant to the court’s directions, the prosecution twice sent out questionnaires to the defence and also issued Notice to Admit Facts to ascertain their stance on various case management issues.  And the court gratefully received reports from the prosecution on the progress of their discussion at each subsequent hearing.

34.  At one stage (at the second hearing), the prosecution did propose to split the 46 defendants into two groups for trial.^[26]  That was when only a handful of the defendants had responded to the prosecution’s questionnaire and many of them were still in the process of applying for legal aid.  At the suggestion of the court, the prosecution helpfully sent another round of more detailed questionnaire to the defence and provided a list that identified the video footages which captured the presence and/or individual conduct of each defendant.  As a result of the additional effort and having regard to the more forthcoming replies from the defence, the prosecution revised its proposal at the third hearing and already proposed to split the defendants into four trials.[27]

35.  The final proposal (the one accepted at the fourth hearing) was based on the following considerations:-[28]

(a)     The defendants who were captured in the video for having committed individual acts at the riot location should be tried together.

(b)     The defendants who (i) were captured in the video for being present at the riot location; or (ii) have been charged with other offences, ie “assaulting police officer” or “possession of offensive weapon”; or (iii) have indicated to dispute the chain or authenticity of the video footage; or (iv) have indicated their intention to dispute identity should be tried together.

(c)     The defendants who have indicated not to dispute (i) the chain and authenticity of the video evidence; (ii) the chain of exhibits and documentary exhibits and/or (iii) their respective locations of interception/subdual/arrest should be tried together.

(d)     The remaining defendants should be tried together.

36.  Thus, the proposal to sever the case into four trials is based more on an assessment of the trial logistics than on the “perceived difficulties for the court and/or defence to handle cases involving large number of defendants” as suggested in the Letter.

37.  The general observations of the prosecution in the Letter may be due to the circumstances of individual cases:-

(a)     The reference to the court severing “one single case into as many as more than twenty separate cases” may be a reference to the incident(s) that happened on 18 November 2019 outside the Polytechnic University.  A total of 210 defendants were brought before the District Court in 12 separate cases. Following a similar process, severance was ordered in 8 of those cases in consultation with the parties resulting in 21 trials.

(b)     The prosecution observed that there are “severed cases with as few [defendants] as 5 in number”.  

In the present case, 3 defendants were ready for trial ahead of the other defendants and the court set down an 8-day trial for them (ie DCCC 969/2020).  That is so notwithstanding the common evidence in these cases. 

(c)     The prosecution also observed that “substantial trial dates up to 35 days have been allocated to separate trials with fewer number of defendants arising from the same factual background”.

In the present case, the parties estimated that the trial in DCCC 239/2021 involving 11 defendants would need 25 days.  On the other hand, the parties estimated the trial in DCCC 237/2021 involving just 8 defendants would take 35 days because of the disputes over the video evidence and the additional charges.  Thus, the number of defendant may not be determinative of the length of trial.

(d)     Two of the 46 defendants in this case pleaded guilty (DCCC 288 & 293/2020).  For the purpose of their plea and sentence hearing, the prosecution reduced what had happened on 29 September 2019 into a 3-page Amended Summary of Facts which was supplemented by 7 annexures of video footages, screen captures and list of exhibits seized.  The proceedings took half a day, including the time taken for the presiding judge to watch the video footages in open court.  Consideration may be given to reuse some of such evidence in the forthcoming trials (whether severed or consolidated) to save public resources and manpower in adducing evidence on the factual background.

F3.    Effect of any consolidation on counsel diaries

38.  In paras 8-9 of the Reply, the prosecution proposes the consolidated trial to take place within the original period allotted to the two trials, ie between 1 June 2022 and 30 August 2022.  It is said that the actual trial dates can be fixed in consultation with counsel diaries so as to minimize any impact on counsel diaries.  The prosecution is optimistic that there is still sufficient time for counsel to prepare for the consolidated trial and for new counsel to be instructed if necessary.

39.  According to the rollcall taken by the prosecution, the defendants in DCCC 239/2021 are represented by 7 different counsel and the defendants in DCCC 237/2021 are represented by 8 different counsel.  They are all assigned by the Director of Legal Aid (“the Director”).

40.  According to the proposal, the consolidated trial will take 35 days and should conclude by 30 August 2022.  So, it should start on 13 July 2022 at the latest. 

41.  Given the imminence of the proposed consolidated trial, any rearrangement of the trial dates will, in my view, cause disproportionate inconvenience to the defence. 

(a)     The counsel in DCCC 239/2021 may have to return brief if the consolidated trial is to take place beyond the period they have committed (ie 1 June to 7 July 2022).  Should the consolidated trial take place earlier than 13 July 2022, the counsel instructed in DCCC 237/2021 may similarly be affected.  Given the short time left (about 3.5 months), I doubt if the newly assigned counsel (assuming timely reassignment of counsel by the Director) would have sufficient time to take fresh instructions for the purpose of the consolidated trial bearing in mind the voluminous evidence involved (around 400 pages of witness statements, 1,000 pages of documentary exhibits and 80GB of video evidence according to the defence). 

(b)     Even for those counsel who continue to take part in the consolidated trial, the mammoth task of taking instructions on the additional evidence relating to the additional defendants should not be underestimated given the short time left.

42.  The defence will suffer prejudice if any inconvenience would impact on their preparation.  I do not see why the defendants and their legal representatives should be driven to frenzy at this late stage.

F4.    Public heath consideration

43.  In para 10 of the Reply, the prosecution addressed the public health concerns raised by the defence by suggesting: (i) that the public health situation will improve after the GAP; and (ii) the court to consider more stringent social distancing measures if necessary.

44.  As noted above, the learned Judge in 香港特別行政區訴吳肇韜及另19人was confident that the pandemic would have resolved by the time of the trial which would not take place before mid-2023.  Given the present public health situation in Hong Kong, I cannot afford to be overly optimistic in this case.

45.  Whilst we all remain hopeful that the public health situation would improve after the GAP, there is no guarantee that we would be free of the virus by the time the consolidated trial commences.  As submitted by the defence, we have seen criminal trials delayed or overrun just because one of those involved (whether defendant, witness or counsel) gets infected or becomes a close contact and requires an adjournment.  The situation is not helped by more stringent social distancing measures.  Everything being equal, it may not be wise to put all the eggs in one basket in terms of a consolidated trial given the present public health situation.

G.   DISPOSITION

46.  Given the proximity of the trial dates, I do not think there is sufficient justification to order consolidation.  The application is therefore dismissed.