HKSAR v. HO KA LOK AND OTHERS

DCCC 238/2021
DCCC 240/2021

[2022] HKDC 278

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 238 OF 2021

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 240 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 238/2021 has been set down for a 30-day trial commencing on 5 September 2022; and

(b)  DCCC 240/2021 has been set down for a 30-day trial commencing on 17 October 2022.

2.  The 21 defendants involved took the following stance:-^[1]

(a)  one raised no objection;^[2]

(b)  13 voiced their objections;^[3]

(c)  6 took a neutral stance;^[4] and

(d)  one did not state his stance.^[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.  Pursuant to my directions, the parties have put in written submissions to facilitate paper disposal. 

5.  Three defendants object to paper disposal.  240/D1 submits that the application should be heard because the court would need to consider “the extent and aspects of dispute to the Prosecution’s case by defendants” and consult the parties’ diaries if the application is allowed.  240/D6 and 240/D8 did not give any reasons.

6.  With respect, the defendants have not provided any valid reason for an oral hearing.  Given the imminence of the trials, it is undesirable to defer decision.  I shall proceed on the papers.

B.    DISCUSSION

7.  This application is related to similar application of the prosecution to consolidate DCCC 239/2021 and DCCC 237/2021 (“the Related Application”). 

8.  The present application is supported by the letter dated 11 February 2022 (“the Letter”) and the written submissions dated 15 February 2022 (“the Submissions”) from the prosecution.  Almost identical submissions were made in the Related Application.

9.  The prosecution submitted a reply dated 17 March 2022 and summarised the objections received from the defence in this instance 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)  Consolidation would mean longer trial and additional legal costs of the defendants.

10.  The same issues (a) to (c) also arose from the objections received in the Related Application.

11.  On 25 March 2022, I handed down a ruling dismissing the Related Application (“the Ruling”).  In dismissing that application, I discussed the prosecution’s submissions in the Letter and the Submissions as well as issues (a) to (c).

12.  (d) is new.  At present, both cases have been set down for a 30-day trial.  If the application is allowed, the prosecution estimates that the consolidated trial would take longer.  This is understandable as more defendants will be on trial at the same time.  The prosecution submits that consolidation would have limited effect on the defendants and the benefits gained from consolidation outweigh any inconvenience.

13.  Unlike the defendants in the Related Application who are all on legal aid, there are defendants who have engaged private legal representation such as 240/D1.  240/D1’s counsel submits that if consolidation is ordered, his client would have to pay more for the additional trial time of the additional defendants.  It would be unfair to his client if the current legal team cannot continue to act for him by reason of changes on the trial dates.

14.  I repeat what was said in the Ruling.  This is ultimately a case management decision.  Given the proximity of the trial dates (which is less than 6 months away), I do not think there is sufficient justification to order consolidation.  The application is therefore dismissed.