HKSAR v. YU WAI HUNG

HCCC80/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL CASE NO. 80 OF 2005

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R U L I N G

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Preliminary matters

1. This is an application by the defendant for an order that his trial on a charge of murdering his wife be permanently stayed because of an alleged abuse of process by the prosecution.  At trial, the defendant will be represented by Mr Chandler of counsel.  Mr Francis Lo, SADPP and Miss Peggy Lo, GC of the Department of Justice will appear for the prosecution.  At all times material to this application those counsel have had the conduct of their respective cases.  The trial will be heard before me in the New Year.

2. For the purposes of the application, as all three counsel gave evidence before me, Mr  John Reading, SC of the Department of Justice appeared on behalf of the prosecution together with Miss Memi Ng, GC and Mr Philip Ross of Counsel appeared for the defendant.

The allegation

3. The allegation arises in this way :  It is common ground that on Friday 30 September 2005, Mr Chandler and Mr Lo had a telephone conversation concerning the case during the course of which Mr Chandler told Mr Lo that the defendant was prepared to plead guilty to manslaughter by way of provocation.  It was common ground between Mr Lo and Mr Chandler that the trial papers did not provide any basis for acceptance of that plea.  Mr Chandler suggested that the defendant be further interviewed by the police as, on his instructions, a further interview of the defendant would provide a proper basis for the plea.

4. A pre-trial review was to be held before Beeson J, the following Monday, 3 October.  A further conversation took place between Mr Chandler and Mr Lo before the pre-trial review which was then adjourned because of Mr Chandler’s offer.  The offer, including the suggestion that the defendant be re-interviewed, was then reduced to writing later the same day, 3 October, by Mr Chandler but on 14 October the prosecution by a letter of that date declined to re-interview the defendant and rejected the defence offer.

5. By his letter of 3 October, and perhaps earlier, Mr Chandler had disclosed details of his instructions as to provocation to Mr Lo.  He said in his evidence that he did so only on the basis of his understanding that Mr Lo had accepted during their conversations that a re-interview of the defendant would take place and that only the form in which the re-interview would be conducted was in dispute.  Mr Chandler says on that understanding he had provided details of his defence of provocation to the prosecution.  He says the change of mind by the prosecution in later refusing to re-interview the defendant has ensured that the defendant will suffer prejudice in his defence as the result of the prosecution being fore warned of it and so better prepared for it at trial.

The issues

6. The issues can be reduced to three matters.  Firstly whether in fact Mr Chandler was led to divulge details of his defence of provocation to the prosecution as a result of the prosecution leading him to believe, wrongly, that a statement would be taken by the police from the defendant; secondly, if so, was there prejudice suffered by the defendant as a result such as to prevent him having a fair trial, and finally if there was no such prejudice, whether a stay should be ordered in any event as the result of the behaviour of the prosecution.

The evidential conflicts

7. As has been seen, a large part of the evidence was common ground.  The primary conflict in evidence was between Mr Lo and Mr Chandler as to whether Mr Lo had effectively acknowledged to Mr Chandler during the course of their conversations on 30 September or 3 October 2005 that a further statement would be taken from the defendant as to the circumstances of the claimed provocation.

8. Mr Chandler’s evidence was that as early as the 30 September conversation between them, he was led to believe a further statement would be taken from the defendant as Mr Lo was only concerned as to the form of the statement i.e. as to whether a cautioned statement or a non-prejudicial statement was to be taken.  He said that when they again spoke on 3 October immediately before the pre-trial review at 9:30 a.m. on that day before Beeson J, the position was the same, though he agreed in cross-examination that Mr Lo had never expressly stated that a further interview would be conducted with the defendant.  Subsequent to the pre-trial review communications between them were conducted by way of the two letters I have mentioned.

9. Mr Lo’s evidence agreed with that of Mr Chandler as to the two occasions i.e. the 30 September and 3 October when they spoke about the offer by the defendant to plead guilty to manslaughter.  Mr Lo said that his recollection was that he had made no comment during the 30 September conversation as to whether the defendant would be re-interviewed, but on the occasion of the conversation of 3 October prior to the pre-trial review, he had told Mr Chandler that there were two issues to consider, firstly whether it was appropriate to re-interview the defendant and if so, secondly, whether the interview should be under caution or on a without prejudice basis.  He said at no stage did he suggest there would be an interview.

Findings

10. I accept both witnesses did their best to recollect honestly in their evidence the terms of the conversations between them.

11. There is little conclusive independent evidence as to which of the diverging recollections of Mr Chandler and Mr Lo is correct.  The letter from Mr Lo to Mr Chandler of 14 October, takes the matter little further as it is simply a formal rejection of the defence offer contained in the letter from Mr Chandler to Mr Lo dated 3 October.  I will return to that latter letter shortly.

12. The transcript of the pre-trial review is not conclusive.  During the pre-trial review Mr Chandler, in seeking an adjournment, said this to the court :

“So the course that I commend to your Ladyship is this, that this pre-trial review be adjourned for three of four weeks that would take us to 28 October – to allow time for the offer to be made formally, in writing, if necessary for further, perhaps, interviews of my client to take place to provide an evidentiary basis for the plea because I accept that there is no evidentially basis for a plea on the basis of provocation on the papers as they stand at present and for the prosecution to consider any additional matters that may become available.” (emphasis added)

That would suggest, particularly regarding the emphasised words, that no agreement had been reached as to re-interviewing the defendant.

13. Mr Lo however at the pre-trial review is recorded as saying concerning the offer of manslaughter by the defendant :

“… and a request, of course, has been made to the defence for reducing the offer in writing with a basis of the acceptance of the lesser plea, and once such offer is received, certain actions are required to be taken and time will be required for consideration to be given to such an offer, my Lady, and I agree that an appropriate time, four weeks hence, would be appropriate, my Lady.”  (emphasis added)

14. That might suggest that a decision had been made to do something following Mr Chandler’s approach but in his evidence, Mr Lo explained the phrase “certain actions are required to be taken” as meaning some legal research was required.

15. Miss Lo in her evidence said that Mr Lo had told her on 5 October, two days after the pre-trial review, that he was “open minded” about re-interviewing the defendant again.  She said she had been earlier instructed on 4 October to conduct research on whether it was appropriate to re-interview the defendant and if so as to whether any such interview should be under caution.  I accept Miss Lo as a reliable witness.  It is plain from her evidence that on 4 and 5 October, Mr Lo did not accept that any agreement had been entered into.

16. The realities of counsels’ conversations conducted on a fairly informal basis, as those between Mr Lo and Mr Chandler were, are that uncertainties must often exist as to what precisely has been agreed or not been agreed between them.  That is why such conversations are usually confirmed or followed up by letter.

17. In the present case such a letter was that of 3 October sent that afternoon by Mr Chandler to Mr Lo at the Department of Justice.

18. In that letter, Mr Chandler says this :

“I am writing to confirm the indication I gave to Mr. Francis Lo over the telephone on 30 September 2005 that my client, as presently advised, proposes to plead not guilty to Murder but guilty to Manslaughter.  I confirmed that stance before the Trial Judge, Madame Justice Beeson, at the PTR held this morning.”

and later,

“In my view, which I hope you share, the justice of the case indicates that it would be right to accept the plea to Manslaughter.  If that be the case the question arises as to how best to obtain additional material that can be placed before the Trial Judge with a view to persuading her that it is indeed right to accept the lesser plea.

I have discussed the practicalities with Mr. Francis Lo.  For my part I think my client should be reinterviewed by the Police and given the opportunity to expand upon his earlier explanation.  Mr. Yu has indicated that he would consent to being further interviewed.  Upon reflection, I think Mr. Lo is correct when he says that any interview should be under caution.  The additional Record of Interview could then be the subject of a Notice to call Additional Evidence.”

19. What does stand out is that this letter, which was sent on 3 October immediately after the conversations between Mr Lo and Mr Chandler, is not couched in terms of any certain agreement having been arrived at to re-interview the defendant, but in far more nebulous terms consistent with there being no such existing agreement.  In that regard it lends significant support to Mr Lo’s recollection of the conversations between him and Mr Chandler.

20. I might add it is obvious from the work notes of Miss Lo (exhibited before me as P2 for the purposes of this application) that Mr Lo told her on 30 September, the day he first spoke to Mr Chandler about this matter, the details of the defendant’s defence of provocation.

21. That can only mean Mr Chandler had told Mr Lo of those details the first time they had spoken about the matter.  That conversation was in the late afternoon of 30 September over the telephone.

22. It seems to me most unlikely therefore that Mr Chandler was induced to reveal those details only after an agreement by the prosecution to re-interview the defendant.  It seems to me most unlikely that a prosecutor would agree to such a course of action during an informal conversation over a telephone without checking with others concerned in the case.  In that regard, I accept Mr Lo’s evidence that he had not agreed to any such interview during that first approach by Mr Chandler, but had simply not commented in any substantial sense and had asked Mr Chandler to put the offer in writing.

23. Taking all the evidence before me as a whole, I am of the view that Mr Lo neither expressly (as both parties agree) nor implicitly (as the evidence suggests to me) undertook to re-interview the defendant and that Mr Chandler was proceeding in his actions on a personal misunderstanding that a re-interview of the defendant would necessarily take place.  In no way can the actions of Mr Lo or Miss Lo be criticised.  On the evidence before me, they acted properly throughout.  The defendant has wholly failed to establish any mala fides on the part of the prosecution.

24. If all that be so, then the factual underpinning of this stay application collapses, as I cannot be satisfied on the probabilities that Mr Chandler disclosed details of his defence case only on the basis of being led to believe by the prosecution that there was such an agreement. 

25. On that basis, there is strictly no need to deal with the second and third issues raised by this application.  But I think it worthwhile to add that in my view, the resolution of those issues would create further barriers to the success of this application.  It seems to me quite clear that the claim by the defendant that his defence has been prejudiced by its premature disclosure to the prosecution does not in any event amount to “such serious prejudice … that no fair trial can be held : in other words that the continuance of the process amounts to a misuse of the process of the court” : AG’s reference (No. 1 of 1990) (1992) QB 630.

26. In my judgment, a fair trial is certainly possible in the present case.  Mr Chandler’s suspicion as asserted in his evidence was that the prosecution had already used the information he had provided them with to bolster their case.  He pointed to the inclusion of a pathologist’s statement in the prosecution’s notice of additional evidence dated after he had divulged his defence to Mr Lo.  As it turns out it is palpably clear from Exhibit P1, a memo directing the police to gather that additional evidence and demonstrably faxed to the police at 11:00 a.m. in the morning of 30 September, that this decision was taken by Mr Lo well before Mr Chandler had spoken to Mr Lo at 5:00 p.m. that afternoon and I accept from the evidence of Mr Lo, Miss Lo and the officer in charge of the case, Senior Inspection Ng, that no additional investigation has taken place since Mr Chandler informed Mr Lo of details of his client’s defence.  But even if additional evidence were to be obtained in future which was relevant to the defence of provocation, I do not see how that could be criticized.  Neither Mr Chandler nor his client can complain about the prosecution acting upon information voluntarily, and without mala fides by the prosecution, being provided to the prosecutors by the defence which is relevant to the issues in the case.  In my view that would not necessarily unfairly prejudice the defendant.

27. Finally, in circumstances where a fair trial is possible, as was said in the judgment of the Court of Final Appeal in Lee Ming-tee v. HKSAR (2001) 4 HKCFAR 133, orders for the staying of proceedings are allowed only in exceptional cases :

“These are the rare cases where the court is prepared to grant permanent stay even though a fair trial undoubtedly remains possible … the circumstances involved an abuse of power which so offended the court’s sense of justice and propriety that the entire prosecution was tainted an abuse of process.  (emphasis added)”

28. That is a far cry from the circumstances of the present case, as is the case of R v. Horseferry Road Magistrates Court Ex parte Bennett (1994) 1 AC 42 relied upon by Mr Ross for the purposes of this application.  In that case, though a fair trial was possible, the defendant had been kidnapped by the English police in South Africa and smuggled back to England for trial, rather than being subjected to proper extradition proceedings.

29. The behaviour of the English authorities in that case was so outrageous as to warrant a stay of the trial proceedings.

30. There can be absolutely no suggestion that that principle applies in the present case.  As I have found the prosecution have acted entirely properly.

31. The application for a permanent stay of these proceedings is refused.