DCCC299/2021

DCCC299/2021

A A B B DCCC 299/2021 C [2024] HKDC 6 C D D IN THE DISTRICT COURT OF THE E HONG KONG SPECIAL ADMINISTRATIVE REGION E CRIMINAL CASE NO 299 OF 2021 F F G ---------------------------- G HKSAR H H v I YEUNG KING LUN (D1) I WONG DI CHUN (formerly known (D3) J J as LAU YIN CHUN) K CHEUNG YUI MING (D4) K ---------------------------- L L M Before: Her Honour Judge A N Tse Ching in Court M Date: 15 December 2023 N N Present: Ms Rosa Lo, Senior Public Prosecutor, and Mr Timothy Chen, O Acting Senior Public Prosecutor, for HKSAR/Director of O Public Prosecutions P P Mr Gibson Shaw, instructed by Cheung & Liu, assigned by Q Q the Director of Legal Aid, for the 1st Defendant R Mr Cindy Kong, instructed by HK&JY Solicitors, assigned by R rd the Director of Legal Aid, for the 3 Defendant S S Mr Andrew Raffell, instructed by T K Tsui & Co, assigned by T the Director of Legal Aid, for the 4th Defendant T U U V V  -2- A A B B Offences: [1] Conspiracy to commit misconduct in public office (串謀 C 犯藉公職作出不當行為罪) – against D1 & D3 C [2] Conspiracy to commit misconduct in public office (串謀 D D 犯藉公職作出不當行為罪) – against D3 & D4 E E [3] Conspiracy to doing act tending and intended to pervert F the course of public justice (串謀作出傾向並意圖妨礙司法 F 公正的行為) – against D3 G G H H ---------------------------- I RULING I ---------------------------- J J K 1. This is an application for a permanent stay of proceedings. K L L Background M M 2. There are 5 defendants in these proceedings. N N O 3. D1 and D3 are charged with: O P P (1) one count of Conspiracy to Commit Misconduct in Q Public Office, contrary to Common Law, sections Q 159A and 159C of the Crimes Ordinance, Cap 200 and R R section 101I(1) of the Criminal Procedure Ordinance, S Cap 221 (Charge 1); S T T U U V V  -3- A A B B (2) D2 to D5 are charged with one count of Conspiracy to C Commit Misconduct in Public Office, contrary to C Common Law, sections 159A and 159C of the Crimes D D Ordinance, Cap 200 and section 101I(1) of the Criminal E Procedure Ordinance, Cap 221 (Charge 2); E F F (3) D3 is also charged with one count of Conspiracy to G doing an Act Tending and Intended to Pervert the G Course of Justice, contrary to Common Law, sections H H 159A and 159C of the Crimes Ordinance, Cap 200 and I section 101I(1) of the Criminal Procedure Ordinance, I Cap 221 (Charge 3). J J K 4. The Prosecution alleged that: K L L Charge 1 M M (1) D1 was a public official, namely an Assistant Officer I N N of the Correctional Services Department. At that time, O D1 held the post of Officer-in-Charge of the O Construction and Maintenance Unit (CMO) at Tong P P Fuk Correctional Institution (TFCI). Between 16 July Q Q 2020 and 23 October 2020, D1 and D3 conspired R together for D1 to wilfully and intentionally R misconduct himself in the course of or in relation to his S S public office without reasonable excuse or justification, T namely: T U U V V  -4- A A B B (a) conniving in the unauthorised possession and use C of a mobile telephone in TFCI by D3 (a C prisoner); and D D E (b) rendering assistance to D3 in improving the E signal reception of a SIM card used in the said F F mobile telephone. G G Charge 2 H H I (2) D2 was a public official, namely an Assistant Officer II I of the Correctional Services Department. He held the J J post of Assistant to the Officer-in-Charge of the K Construction and Maintenance Unit at Tong Fuk K Correctional Institution. Between 16 July 2020 and 23 L L October 2020, D2 to D5 conspired together for D2 to M misconduct himself in the course of or in relation to his M public office without reasonable excuse or justification, N N namely: O O (a) conniving in the unauthorised possession and use P P of a mobile telephone in Tong Fuk Correctional Q Q Institution by D3 (a prisoner); and R R (b) introducing unauthorised cigarettes into the S S Tong Fuk Correctional Institution for D3 (a T prisoner). T U U V V  -5- A A B B Charge 3 C C (3) Between 18 August 2020 and 20 August 2020, Li Chun D D Ping was a prisoner at Tong Fuk Correctional E Institution. During those dates, both Li Chun Ping and E D3 were inmates of Dormitory F3 in that institution. D3 F F was a participant in a betting game inside the G Dormitory. Li Chun Ping did not participate in the G game. When the suspected breach of Prison Rules was H H investigated by the Correctional Services Department, I Li Chun Ping offered himself in substitution of D3 as I the participant. Li Chun Ping subsequently pleaded J J guilty to the breach of Prison Rules during disciplinary K proceedings. K L L 5. D2 and D5 pleaded guilty to Charge 2 on 11 May 2022. The M trial only involves D1, D3 and D4. M N N The Prosecution Case O O 6. The Prosecution’s case is as follows: P P Q Q Background R R (1) TFCI is a medium security institution of the S S Correctional Services Department (CSD) housing T convicted male adults. T U U V V  -6- A A B B (2) D1 was at all material times a public officer. At all C material times, he was an Assistant Officer I of the CSD C posted to the Centre Division of TFCI and was the D D officer-in-charge of the CMO. E E (3) D2 was also a public officer. At the material times, he F F was an Assistant Officer II posted to the Centre G Division of TFCI. From 29 June 2020, D2 was assigned G to work at the CMO or Gardening. He was also the H H assistant to D1 and would act as the officer-in-charge I of the CMO when D1 was on leave. I J J (4) Between 20 March 2018 and 23 October 2020: D3 was K a prisoner, serving his sentence at TFCI. His bed space K was No 14 in Dormitory F3. D3 was formerly known L L as LAU Yin Chun and his nickname is “Luk Tou 六 M M 頭”. N N (5) D4 served his sentence in TFCI from 8 August 2018 to O O 6 May 2020. His designated bed was also in Dormitory P F3. P Q Q (6) D5 served his sentence in TFCI from 4 January 2019 to R 3 September 2020. Between 12 July 2019 and 7 August R 2020, his designated bed was mostly in Dormitory F3. S S T T U U V V  -7- A A B B (7) Mr Ho Siu Fung was the Principal Officer of the Centre C Division in TFCI, whilst Mr Li Siu On was the C Principal Officer of the Security Unit of TFCI. D D E (8) Prisoners in TFCI are assigned to work in different E workshops, including the CMO. Between 16 July 2020 F F and 23 October 2020, D1 and D2 were responsible for G the supervision of the discipline and activities of G prisoners assigned to work at the CMO. H H I (9) D3, D4 and D5 were assigned to work at the CMO I during the following periods: J J K (1) D3: 21 March 2019 to 23 October 2020; K (2) D4: 10 August 2018 to 6 May 2020; L L (3) D5: 24 April 2020 and 7 August 2020 M M (10) The conduct of CSD officers and prisoners are N N governed by the Prisons Ordinance, Cap 234 and the O Prison Rules, Cap 234A. O P P (11) Prison officers are prohibited from bringing their Q Q personal electronic or communication devices, R including mobile telephones into TFCI whilst on duty. R They are allowed to bring 20 cigarettes for self- S S consumption. These cigarettes cannot be the brands T “Wealth” and “Gentori”. The cigarettes can be T U U V V  -8- A A B B consumed by the CSD officers in designated areas C where they are not in contact with any prisoner. C D D (12) Under section 18 of the Prisons Ordinance, except E where authorised by the Commissioner of the CSD, E CSD officers are not allowed to convey to any prisoner F F any unauthorised articles. Under rule 239 of the Prison G Rules, it is a disciplinary offence if a CSD officer G communicates with any ex-prisoner without proper H H authority from the management of the CSD, or allows I any undue familiarity between a prisoner and himself. I J J (13) Prisoners in TFCI are allowed to receive certain articles K specified on the List of Approved Hand-in Articles (the K List) from visitors. Cigarettes and mobile telephones L L are not on the List. Cigarettes are valuables in prison. M Prisoners can use their wages earned during their prison M term to purchase cigarettes of two specific brands, N N namely “Wealth” and “Gentori”, through the O arrangement of the CSD. O P P Investigation Q Q R Charge 1 R S S (14) A covert investigation was mounted by the ICAC. On T 22 October 2020, an audio recording device was T planted to record the conversations that took place at U U V V  -9- A A B B the CMO of TFCI between 0900 hours to 1215 hours C when D1 was on duty (the covert audio recording). C The Prosecution alleges that: D D E (a) the audio recording shows that D1 met D3 at the E CMO; F F G (b) D3 told D1 that there appeared to be a signal G reception issue with his CSL SIM card and that H H he could not make any telephone calls; I I (c) D1 offered to check with CSL on D3’s behalf; J J K (d) Since D1 was on vacation leave that afternoon, K he would ask D2 to inform D3 the result of his L L enquiry with CSL; M M (e) D3 showed his mobile telephone to D1 and stated N N that he could not access the internet. D1 told D3 O to be low key with the mobile telephone; O P P (f) D3 told D1 that he had a few other SIM cards, Q Q including one from China Mobile. R R (15) On 23 October 2020, the ICAC operation turned overt. S S D3 was intercepted and a body search was conducted. T At that time, D3 was holding a prisoner’s bag. Inside T the bag, the following items were found and seized: U U V V  - 10 - A A B B C (a) a black foldable mobile telephone (the C Telephone). The Telephone is about 6 cm x 3 cm D D in size and can be used to send and receive SMS E messages in simplified Chinese characters but E had no access to the internet; F F G (b) A prepaid SIM card from China Mobile Hong G Kong Company Limited inside the Telephone. H H The telephone number is 5608 7429 (the China I Mobile number). This SIM card was activated I on 21 August 2020; J J K (c) 2 unopened packets of cigarettes of the brand K “Marlboro” and Mevius; L L M (d) An opened packet of cigarettes of the brand M “Marlboro” which contained 7 cigarettes; N N O (e) 5 lighters O P P (16) The interception and search of D3 were filmed. Q Q R (17) On the same day, a search was then conducted at the R CMO workshop. A black USB cable and a DVD player S S with a USB port were found inside a tool room. These T items were seized in D3’s presence. T U U V V  - 11 - A A B B (18) The Prosecution asserts that between 21 August 2020 C and 23 October 2020, during his remand, D3 used the C China Mobile number to exchange a total of 41 D D telephone calls and 64 SMS messages with D4, D5, E Wong Yuen Man, D3’s parents, D3’s brother and D3’s E sister. WONG Yuen Man sent Mark Six Lottery results F F on 8 October and 22 October 2020 to D3 by 2 SMS G messages to the China Mobile number. G H H (19) Investigations also revealed that a prepaid SIM card I from CSL Mobile Limited (CSL) with the mobile I telephone number 6598 7379 (the CSL number) was J J activated on 16 July 2020. The Prosecution alleges that K between 16 July and 23 October 2020, during his K remand at TFCI and whilst working under D1’s L L supervision, D3 used the CSL number to exchange a M total of 2,234 telephone calls and 1,825 SMS messages M with D4, D5, LAW Kin Wing, TSANG Sze Wing Rain, N N WONG Sin Yu, WONG Yuen Man, LI Chun Ping, O D3’s parents, D3’s brother and D3’s sisters. O P P (20) Between 6 March and 23 October 2020, D3 did not Q Q submit any written request to the Rehabilitation Unit to R make phone calls. R S S (21) On 23 October 2020, D1 was also arrested by the T ICAC. His mobile telephone with the telephone number T 6682 6288 (D1’s Telephone) was seized. A subsequent U U V V  - 12 - A A B B subscriber check revealed that 6682 6288 was C registered in D1’s name. There were 2 calls from D1’s C Telephone to the CSL hotline on 23 October 2020. D D Those calls were recorded: E E (a) at 1018 hours to the CSL hotline at 2888 2123. F F A Mr Yeung enquired about the prepaid SIM G card 6598 7379 (ie the CSL number); G H H (b) At 1022 hours to the CSL hotline at 179179. A I Mr Yeung complained that the prepaid SIM card I of 6598 7379 (the CSL number) with a prepaid J J value of over $400 seemed to disconnect all the K time and the reception had deteriorated. Mr K Yeung confirmed that this prepaid SIM card was L L used by his family member in a conventional M telephone on Lantau Island. The prepaid SIM M card was confirmed to be still active and the N N system was normal. O O (22) On the same day, a search was conducted at D1’s home, P P CSD197A (9/2012) form with “6598 7379” (ie the CSL Q Q number) written at the back was found and seized. R R Charge 2 S S T (23) Between 29 June 2020 and 5 August 2020, D5 worked T at the CMO under D2’s supervision. Between 29 June U U V V  - 13 - A A B B and 23 October 2020, D3 worked at the CMO under C D2’s supervision. On 4 September 2020, D4 set up a C chat group on WhatsApp called the “Chit Chat Group”. D D D2 and D5 were both members of the group. E E (24) A laminated paper recording the incarceration details of F F D5 were found in a plastic box next to D3’s bed in G Dormitory F3. G H H (25) The Prosecution alleges that the telephone records I show that D3 had used the China mobile number and I the CSL number to communicate with various parties J J when he was working at the CMO under D2’s K supervision from 18 July to 23 October 2020: K L L (1) Between 3 September and 5 September 2020, D3 M sent 3 SMS messages to D5 with the CSL M number, requesting D5 to recharge the CSL SIM N N card; O O (2) At about 1623 hours on 8 September 2020, D5 P P first recharged $300 to his Octopus card number Q Q 08983031(2) at a 7-Eleven store and then R recharged the CSL SIM card at a CSL retail shop R in Tsing Yi with his Octopus card; S S T (3) At about 2151 hours on 8 September 2020, D3 T sent a SMS message to D5 with the CSL number, U U V V  - 14 - A A B B asking D5 to send messages to him by using C simplified Chinese characters; C D D (4) On 3 October 2020, D3 sent a SMS message to E D5 with the CSL number, requesting D5 to E recharge the CSL SIM card; F F G (5) On 18 and 19 October 2020, D3 sent 2 SMS G messages to D5 with the CSL number, stating H H that it was about time to buy a new CSL SIM I card for him because it was easier to recharge I CSL SIM cards. J J K (26) On 23 October 2020, D5’s Octopus card number K 08983031 was seized from D5. L L M (27) The Prosecution also asserted that WhatsApp messages M were exchanged between D2, D4 and D5: N N O (1) On 4 September 2020, after D4 set up the “Chit O Chat Group”, D2 changed the group’s name to P P “CMO”. The WhatsApp messages were Q retrieved from D2 and D5’s telephones; Q R R (2) Between 1252 and 1306 on 24 September 2020, S S messages were exchanged between D2, D4 and T D5 in the WhatsApp group. D5 complained T about receiving call# from D3 early in the U U V V  - 15 - A A B B morning. D2 asked whether D3 called them C every day and said D3 was very bored. D4 asked C D2 to tell D3 that he had dealt with $5,000 for D D D3 and asked D2 not to talk to D3 about their E complaints. When D2 offered to ask D3 not to E call them in the morning, both D4 and D5 asked F F D2 not to do so; G G (3) Between 1705 and 1708 hours on 24 September H H 2020, D2 complained that D3 always stayed in I the room to talk on the telephone. D4 replied that I he did not know what D3 was doing. J J K (28) Further, the Prosecution alleged that there were K WhatsApp messages between D4 and D5: L L M (1) Between 1500 and 1504 hours on 6 September M 2020, D5 complained to D4 that D3 had asked N N D5 to do things without paying him. Upon D4’s O enquiry, D5 told D4 that he has to recharge for O the phone bill for D3. P P Q Q (2) At 1821 hours on 8 September 2020, D5 told D4 R that he had topped up $309 for D3 by using his R Octopus card and that D3 also enquired with D5 S S whether D4 had contacted D5. D5 told D4 that T he had replied D3 that D4 had not contacted D5 T yet. U U V V  - 16 - A A B B C (29) In addition, the Prosecution also relied on WhatsApp C messages between D5 and D5’s father: D D E (1) Between 1513 and 1517 hours on 5 October E 2020, D5 asked his father to recharge the CSL F F SIM card in the sum of $500. D5’s father G promised to do so; G H H (2) At 1244 hours on 6 October 2020, D5’s father I told D5 that he was recharging $500 and a I message will be received; J J K (3) Between 1513 and 1517 hours on 22 October K 2020, D5 asked his father to recharge for D3. L L D5’s father replied that $50 was recharged. M M (30) CSL recharge history of the CSL number showed that N N it had been recharged a total sum of $1,400 on 17 O occasions since it’s activation on 16 July 2020, O including: P P Q Q Date Payment Method Amount By whom 1 8 September 2020 Octopus $300 D5 R R 2-4 21 August 2020 Vouchers $300 Unknown S 5-7 30 July 2020 Vouchers $300 Unknown S 8-17 6 October 2020 Vouchers $500 D5’s father T T U U V V  - 17 - A A B B (31) China Mobile Recharge records of the China Mobile C number showed that it had been recharged a total sum C of $300 on 2 occasions since its activation on 21 August D D 2020: E E (a) 22 October 2020 $50 by D3’s sister; F F (b) 23 October 2020 $250 G G (32) The Prosecution says that: H H I (1) On 17 September 2020, D3 sent 2 SMS messages I to D5 with the CSL number, instructing D5 to J J ask D2 to buy him a packet of cigarettes on the K following day; K L L (2) On 18 and 19 September 2020, D3 sent 2 SMS M messages to D5 with the CSL number, M instructing D5 to ask D2 to buy him a packet of N N cigarettes the following day; O O (3) On 22 September 2020, D3 sent a SMS message P P to D5 with the CSL number, instructing D5 to Q Q ask D2 to buy him a packet of cigarettes the R following day; R S S (4) Between 2113 hours and 2258 hours on 22 T September 2020, messages were exchanged T between D2 and D5 in the WhatsApp group. D5 U U V V  - 18 - A A B B asked D2 to buy 2 packets of cigarettes for D3. C D2 replied that he was worried that he did not C have the chance to see D3 at the CMO and said D D he had taken an e-cigarette back for D3. D5 E thanked D2. D2 said he would buy it first and E give it to D3 when he saw him. When D5 shared F F information about e-cigarettes, D2 said he was G looking for ordinary e-cigarettes and that the one G he took back the last Saturday was not yet H H finished. D5 reminded D2 to buy 2 packets of I cigarettes for D3 the following day; I J J (5) On 23 September 2020, D3 sent 2 SMS messages K to D5 with the CSL number, instructing D5 to K ask D2 to buy him a packet of cigarettes the L L following day; M M (6) Between 0002 and 1252 hours in 24 September N N 2020, messages were exchanged between D2 and O D5 in the WhatsApp group. D5 asked D2 O whether he had purchased the 2 packets of P P cigarettes for D3. D2 replied it had been done, as Q Q he was in the CMO; R R (7) Between 1307 and 1313 hours on 24 September S S 2020, messages were exchanged between D2 and T D4 in the WhatsApp group. D4 asked D2 if he T could pass the cigarettes to D3, D2 replied in the U U V V  - 19 - A A B B affirmative. D4 said he had 11 cartons of C cigarettes to pass to D3. D2 reassured D4 that he C could pass them to D3 whenever possible and D D told D4 that D3 now smoked e-cigarettes in the E workshop; E F F (8) At about 1918 hours on 9 October 2020, D2 G purchased 1 packet of Mevius cigarettes at G 7-Eleven, Po Yan Building, Tai Po. The CCTV H H of this 7-Eleven was produced; I I (9) At 2306 hours on 13 October 2020, D5 asked D2 J J in the WhatsApp group to buy a packet of K Mevius cantaloupe flavoured cigarettes for D3 K the following day; L L M (10) Between 2026 and 2108 hours on 14 October M 2020, D2 and D5 exchanged WhatsApp N N messages. D5 asked D2 to buy cigarettes for D3. O D2 requested D5 to ask D4 to bring D2 the O cigarettes as it was troublesome for him to buy P P cigarettes every time and the cigarettes might not Q Q reach him. D5 suggested that D2 should buy a R few cartons in advance and money would be paid R to D2 immediately. D2 agreed; S S T (11) At 1829 hours on 15 October 2020, D2 and D5 T exchanged WhatsApp messages. D2 told D5 that U U V V  - 20 - A A B B he would deliver cigarettes to CMO later and C would talk to D3 about it. D5 said D3 called him C the previous day. D2 said he would talk to D3 D D about it and D5 agreed; E E (12) At 0522 hours in 19 October 2020, D5 asked D2 F F in the WhatsApp group to buy 2 packets of G cantaloupe flavour Mevius cigarettes for D3; G H H (13) Between 2050 and 2152 hours on 22 October I 2020, D2 and D5 exchanged WhatsApp I messages. D5 asked D2 to buy 2 packets of J J cantaloupe Mevius cigarettes for D3 the K following day; K L L (14) Between 0024 and 0027 hours on 23 October M 2020, D3 sent 3 SMS messages to D5 with the M CSL number, enquiring whether D5 had asked N N D2 to buy cigarettes for him and D2’s reply; O O (15) At about 0604 hours on 23 October 2020, D2 P P purchased 2 packets of Mevius cigarettes at Q Q Circle K, Wan Tau Tong Shopping Centre, Tai R Po before reporting duty at TFCI. The CCTV of R this Circle K was produced; S S T (33) D1 and D2 never reported the unauthorised possession T by prisoners of the Telephone and/or cigarettes to the U U V V  - 21 - A A B B CSD. The CSD does not allow its officers to give their C own cigarettes to prisoners. When CSD officers find C any prisoner had violated prison discipline, eg D D possession of unauthorised articles, they must stop E them immediately and report it to their supervisors. E F F Charge 3 G G (34) The Prosecution says that: H H I (1) In the evening of 18 September 2020, D3 and 3 I other prisoners gathered inside Dormitory F3 of J J TFCI to play a betting game with homemade K chess pieces (the Game) which was prohibited K under section 61(p) of the Prison Rules. Other L L prisoners, including Li Chun Ping gathered M around to watch; M N N (2) When a CSD officer patrolled near the gate of O Dormitory F3 at about 1900 hours, the crowd O dispersed. The chess pieces were seized; P P Q Q (3) In the morning of 19 August 2020, D3 asked the R prisoners in Dormitory F3, including Li Chun R Ping, if anyone was willing to stand in for him in S S the anticipated disciplinary proceedings and T offered to pay several thousand dollars to that T person as remuneration. Li Chun Ping agreed to U U V V  - 22 - A A B B stand in for D3 by admitting to the CSD that he C was one of the participants in the Game because C he was about to be discharged and wanted to earn D D some money. Upon D3’s request, Li Chun Ping E wrote down his number of his Bank of China E account on a piece of paper and gave it to D3; F F G (4) When CSD officers conducted an inquiry later G on the same day, Li Chun Ping admitted under H H caution that he was one of the players of the I Game on 18 August 2020 and signed a record of I interview. Li Chun Ping was then transferred to J J another cell and never returned to Dormitory F3 K before his release; K L L (5) Li Chun Ping was later charged with an offence M against prison discipline. On 20 August 2020, M disciplinary proceedings were held where Li N N Chun Ping pleaded guilty, and was convicted and O sentenced; O P P (6) Whilst Li Chun Ping was remanded in another Q Q cell, D3 approached Li Chun Ping and provided R him with the mobile numbers of D3’s brothers to R arrange for payment of remuneration upon Li S S Chun Ping’s release; T T U U V V  - 23 - A A B B (7) On 7 September 2020, Li Chun Ping was C released from TFCI. His mobile telephone C number was 5117 9586. His BOC account was D D activated. On 9 September 2020, Li Chun Ping E contacted one of D3’s brothers and was given the E CSL number as D3’s telephone number; F F G (8) Between 9 September and 17 October 2020, Li G Chun Ping called D3, who was still in TFCI H H several times to ask for remuneration. In mid- I October 2020, D3 asked Li Chun Ping to contact I D5 at 6898 1997 for payment; J J K (9) On 17 October 2020, Li Chun Ping sent 2 K WhatsApp messages to D5. Li Chun Ping L L claimed that he was D3’s friend, provided his M account number to D5 for deposit of money on M D3’s behalf. Li Chun Ping also asked D5 when N N the money would be deposited; O O (10) At about 1144 and 1146 hours on 20 October P P 2020, D3 sent 2 SMS messages to D5 with the Q Q CSL number, instructing D5 to deposit $2,000 R into a Hong Kong Jockey Club account number R 25078248. D3 also asked D5 to inform him and S S Li Chun Ping after the deposit; T T U U V V  - 24 - A A B B (11) At about 1203 hours on 20 October 2020, Li C Chun Ping sent another WhatsApp message to C D5 asking whether D5 was going to deposit the D D money for him; E E (12) On 21 October 2020, D5 transferred $2,000 to Li F F Chun Ping’s bank account. At about 1738 hours G on 21 October 2020, D5 sent a deposit slip G showing the deposit of $2,000 to Li Chun Ping. H H Li Chun Ping confirmed receipt of the message; I I (13) At 2010 hours on 21 October 2020, D3 sent 2 J J SMS messages to D5 with the CSL number, K enquiring whether the money had been K deposited. D5 replied in the affirmative. L L M Arrest M N N (35) On 23 October 2020, D1, D2, D4 and D5 were arrested O and interviewed under caution. D3 was interviewed O under caution at Stanley Prison on the same day. P P Q Q The Defence Case R R 7. A large part of the Prosecution’s case was not in dispute. S S Extensive evidence was admitted under section 65C of the Criminal T Procedure Ordinance, Cap 221 and is set out in 5 sets of Admitted Facts, T including: U U V V  - 25 - A A B B C (1) TFCI is a medium security prison housing convicted C male adults; D D E (2) The layout of TFCI; E F F (3) The position and role of Principal Officer Li Siu On at G TFCI; G H H (4) At all material times, D1 and D2 were CSD officers I who worked in TFCI and were hence in public office; I J J (5) D1 was the officer-in-charge of the CMO of TFCI and K D2 was D1’s assistant; K L L (6) The prisoners’ working hours at the CMO in TFCI; M M (7) The staff and work shift records of D1 and D2; N N O (8) The provisions of the Prisons Ordinance and the Prison O Rules; P P Q Q (9) D3, D4, D5 and Li Chun Ping were all prisoners at R TFCI and their periods of incarceration. Their bed R spaces were in Dormitory F3; S S T (10) D1’s nickname “Luk Tau”; T U U V V  - 26 - A A B B (11) The penal records of D3, D4 and D5; C C (12) The period that D3 was assigned to work at the CMO D D under the supervision of D1 and D2; E E (13) The photographs of D1’s mobile telephone number F F 6682 6288, the serial number and call logs of that G telephone; G H H (14) The registration of D4’s mobile telephone number 9588 I 2770; I J J (15) The CSL Hotlines enquiries and the audio recordings K and transcripts of the same; K L L (16) The CCTV footages of the 7-Eleven and Circle K M stores; M N N (17) Li Chun Ping’s bank statement which showed a transfer O deposit of $2,000 on 21 October 2020; O P P (18) The Mark Six results on 8 October 2020 and 22 October Q Q 2020 and the winning sequence of numbers; R R (19) The results of the 2020/2021 UEFA Europa League S S football matches on 23 October 2020; T T (20) The transaction records of D5’s Octopus card; U U V V  - 27 - A A B B C (21) The call records of mobile telephone number 6598 C 7379 between 16 July 2020 and 23 October 2020; D D E (22) The call records of D1’s mobile telephone number 6682 E 6288 between 17 and 23 October 2020; F F G (23) The subscriber record, SIM card reference record, call G records of D2’s mobile telephone number 5340 5825; H H I (24) The subscriber record, SIM card reference and call I records of the mobile telephone number 6901 0617 of J J D3’s brother WONG Yin Lung from 20 June to 23 K October 2020; K L L (25) The subscriber record of mobile telephone number M 6698 8665 of WONG Sin Yu (a prosecution witness); M N N (26) The SIM card reference record, call records from 21 O August to 23 October 2020 of the prepaid mobile O telephone SIM card number 5608 7429; P P Q (27) The subscription of LAU Yin Ching (D3’s sister) to Q R mobile telephone number 5108 4690 between 10 R August 2019 and 22 June 2021; S S T T U U V V  - 28 - A A B B (28) The subscription of WONG Sang Choy (D3’s father) to C mobile telephone number 6349 8187 between 13 June C 2014 and 22 June 2021; D D E (29) The subscription of NG Siu Chi (D3’s mother) to E mobile telephone number 6301 0269 between 13 F F January 2009 and 22 June 2021; G G (30) The prepaid SIM card with telephone number 5514 H H 5212 used by LAW Kin Wing (a prosecution witness) I between 5 March 2019 and 22 June 2021; I J J (31) The SMS records of 5608 7429 between 21 August and K 23 October 2020; K L L (32) The SMS records of D3’s sister’s telephone number M 5108 4690 between 16 July and 23 October 2020; M N N (33) The top up record of 5608 7429 in October 2020; O O (34) D4’s subscription of the mobile telephone number 9588 P P 2770 between 15 May 2020 and 23 March 2021; Q Q R (35) The call records of D4’s telephone number 9588 2770 R between 15 May and 23 October 2020; S S T (36) The call forward records of D4’s telephone number T 9588 2770 between 15 May and 23 October 2020; U U V V  - 29 - A A B B C (37) The call forward records of D4’s telephone number C 9588 2770 between 17 May and 23 October 2020; D D E (38) The prepaid mobile telephone number 6898 1997 used E by D5 between 7 July 2018 and 23 March 2021; F F G (39) The SIM card reference record of the telephone number G 6898 1997 used by D5; H H I (40) The call records of D5’s telephone number 6898 1997 I between 3 September and 23 October 2020; J J K (41) D3’s brother, WONG Yin Kit’s subscription to mobile K telephone number 6056 6694 between 2 June 2020 and L L 23 March 2021; M M (42) The SIM card reference record of D3’s brother’s N N telephone number 6056 6694; O O (43) The subscription of mobile telephone number 6541 P P 8876 by TSANG Shuk Yee (family member of TSANG Q Q Sze Wing Rain, a prosecution witness) between 23 R February 2019 and 23 March 2021; R S S (44) The subscription to mobile telephone number 6791 T 6789 by D3’s sister WONG Yin Lin between 1 T November 2017 and 23 March 2021; U U V V  - 30 - A A B B C (45) The subscription to mobile telephone number 5117 C 9586 by Li Chun Ping between 7 September 2020 and D D 8 April 2021; E E (46) The position and role of Superintendent of CSD, LAU F F Kee Yan Ronald in TFCI and his responsibility to G conduct adjudication, make determination and order G punishment in respect of breaches of Prison Rules; H H I (47) The procedure for prisoners to make telephone calls in I TFCI; J J K (48) No written request was made by D3 to make telephone K calls between 6 March 2020 and 23 October 2020; L L M (49) The seizure of D2’s mobile telephone and SIM card M with telephone number 5340 5825; N N O (50) Photographs of D2’s mobile telephone depicting the O messages exchanged between 4 September 2020 and 19 P P October 2020 in the WhatsApp Group named “CMO” Q Q where D2, D4 and D5 were members; R R (51) A compact disc containing 108 audio files retrieved S S from the WhatsApp group named “CMO” for the T period from 4 September and 19 October 2020; T U U V V  - 31 - A A B B (52) A table of WhatsApp text messages and transcripts of C the audio messages exchanged in the WhatsApp group C named “CMO” from 4 September to 23 October 2020; D D E (53) A compact disc containing 62 audio files extracted E from D2’s telephone. These are communications from F F the WhatsApp communications between D2’s G telephone (5340 5825) and D5’s telephone number G (6898 1997) from 8 September to 23 October 2020; H H I (54) 14 photographs of D2’s mobile telephone depicting the I WhatsApp messages exchanged between D2’s J J telephone number (5340 5825) and D5’s telephone K number (6898 1997) from 8 September to 23 October K 2020; L L M (55) A table of WhatsApp text messages extracted from M D2’s telephone and transcripts of the audio messages N N exchanged between D2 and D5 between 8 September O and 23 October 2020; O P P (56) The contact records retrieved from the telephone seized Q Q from the bag held by D3; R R (57) The SMS records of mobile number 5608 7429; S S T (58) The seizure of other telephones and SIM cards on 24 T October 2020, including those of: U U V V  - 32 - A A B B C (a) D3’s father WONG Sang Choy (formerly known C as LAU Sang Choy), telephone number 6349 D D 8187; E E (b) D3’s mother with telephone number 6301 0269; F F G (c) D3’s twin brother WONG Yin Lung (formerly G known as LAU Yin Lung) with telephone H H number 6901 0617; I I (d) D3’s younger brother WONG Yin Kit (formerly J J known as LAU Yin Kit) with telephone number K 6056 6694; K L L (59) The arrest of D5 at his residence by the ICAC on 23 M October 2020; M N N (60) The seizure of D5’s mobile telephone and 2 SIM cards O with telephone number 6898 1997 and D5’s Octopus O card numbered 08983031(2); P P Q (61) 9 contact record entries extracted from D5’s mobile Q R telephone; R S S (62) A compact disc containing 62 audio files and one video T file retrieved from the WhatsApp messages between T U U V V  - 33 - A A B B the telephones of D2 (5340 5825) and D5 (6898 1997) C from 8 September to 23 October 2020; C D D (63) A table of WhatsApp messages and transcripts between E the telephones of D2 (5340 5825) and D5 (6898 1997) E from 8 September to 23 October 2020; F F G (64) SMS messages exchanged between mobile numbers G 6598 7379 and 6898 1997 (D5’s number) from 3 H H September to 21 October 2020; I I (65) SMS records exchanged between mobile numbers 5608 J J 7429 and 6898 1997 (D5’s number) on 23 October K 2020; K L L (66) A compact disc containing 117 audio files from the M WhatsApp messages between 9588 2779 (D4) and M 6898 1997 (D5) from 3 September to 9 October 2020; N N O (67) A table of the WhatsApp text messages and transcripts O of the audio messages exchanged between D4 (9588 P P 2770) and D5 (6898 1997) from 3 September to 9 Q Q October 2020; R R (68) The WhatsApp messages exchanged between D5 (6898 S S 1997) and Li Chun Ping (5227 9586) from 17 October T to 21 October 2020 with one image file attachment; T U U V V  - 34 - A A B B (69) The computer certificate of the CSL SIM card with C mobile number 6598 7379, its activation date and its C recharging record; D D E (70) D5 recharging the CSL SIM card with mobile number E 6598 7379 on 8 September 2020 in the amount of $300 F F with his Octopus card; G G (71) A compact disc containing the video footage of D5 H H recharging the CSL SIM card with mobile number 6598 I 7379 at a CSL retail outlet; I J J (72) A list of calls and SMS exchanged between mobile K number 6598 7379 and D4, D5, D3’s parents, D3’s K siblings, Li Chun Ping, WONG Sin Yu, WONG Yuen L L Man, LAW Kin Wing; M M (73) The activation date of prepaid the China Mobile SIM N N card with telephone number 5608 7429; O O (74) A list of calls and SMS messages between the China P P Mobile number 5608 7429 and D4, D5, D3’s parents, Q D3’s siblings and WONG Yuen Man; Q R R (75) D5’s bank statement showing a transfer deposit of S S $2,000 to Li Chun Ping; T T U U V V  - 35 - A A B B (76) The SMS messages containing the winning Mark Six C numbers in 8 and 22 October 2020 sent by WONG C Yuen Man (9085 9983) to mobile number 5608 7429 D D on 8 October and 22 October 2020; E E (77) Video footages of D2’s purchase of cigarettes at the F F 7-Eleven store; G G (78) Video footages of D2’s purchase of cigarettes at the H H Circle K store; I I (79) The search of the telephone and seizure of the China J J Mobile SIM card (5608 7429) found during D3’s K search; K L L (80) The adjudication hearing and report of Li Chun Ping in M respect of the Game; M N N (81) The search of D1’s residence on 23 October 2020 and O the seizure of D1’s telephone and a CSD197A (9/2012) O form with “6598 7379 CSL” written on the back; P P Q Q (82) The chain of evidence of the above mentioned items. R R 8. D1, D3 and D4 deny that they were involved in any of the S S alleged conspiracies. The main issues are: T T U U V V  - 36 - A A B B (1) Whether D1 had knowledge of the Telephone, found C during D3’s search; C D D (2) Whether D1 assisted D3 in improving the reception of E the telephone found during D3’s search; E F F (3) Whether D3 had knowledge of and was in possession G of the telephone and the cigarettes found during the G search; H H I (4) Whether D3 had used the Telephone; I J J (5) Whether D3 and D4 had conspired with D2 and D5 to K introduce unauthorised cigarettes into TFCI for D3; K L L (6) Whether D3 and D4 had conspired with D2 in his M connivance of the unauthorised possession and use of M the telephone by D3 in TFCI; N N O (7) Whether D3 had participated in the Game; and O P P (8) Whether D3 had requested Li Chun Ping to admit to Q Q participating in the Game in his stead for reward. R R Events leading to the Present Application S S T 9. As was explained above, the ICAC planted an audio recording T device to record the conversations of the CSD officers and prisoners in the U U V V  - 37 - A A B B CMO. Prior to the commencement of the trial, D1’s counsel complained C that the Prosecution had failed to make disclosure of the details of that C audio recording device, including the brand and the model, where it was D D planted and the length of the recording. The Prosecution claimed that the E method of surveillance was subject to public interest immunity, whereupon E D1’s counsel abandoned his complaint. F F G 10. The trial then proceeded without event until day 6. One of the G main issues in the trial is the identities of the speakers in the covert audio H H recording. On day 5 of the trial, the Prosecution called Mr LI Siu On (Li), I Principal Officer of CSD at TFCI to identify the voices in the covert audio I recording. Li told the Court that he was able to recognise the voice of D3 J J because he had listened to the audio recordings of D3’s prisoner visits and K D3 had greeted him during Mr Li’s weekly patrols in TFCI. K L L 11. Li’s evidence could not be completed on day 5. He was M warned not to discuss these proceedings with anyone during the M adjournment. N N O 12. That evening at around 1953 hours, Ms Rosa Lo (the O Prosecutor) had the following conversation with Ms Krystie Cheng, the P P officer in charge of this case (the OC Case). Q Q R OC Case The Prosecutor R Li wish to have a chance to clarify: when S he did voice ID, he mainly relied on the S visit recordings that he listened intensively around that period. The T routine patrol conversations were not he T U U V V  - 38 - A A B B relied on, that only gave him an impression of D3 C (19:53) C Can ask him about it when re-exam? D (19:53) D I think we can’t talk to him now E (19:53) E I didn’t talk to him… just CSD Liaison F expressed such view F (19:54) G IC. Scared the sxxx out of me G (19:56) H This kind of communication should also H be stopped too (19:56) I I J 13. The following morning (day 6) of the trial, the Prosecutor J quite rightly asked the OC case to stay outside the Courtroom. The K K Prosecutor then informed the Defence about her WhatsApp L communications with the OC Case the previous evening. L M M 14. During this time, the OC Case’s subordinate, Ms Salina Siu N was inside the Courtroom. Ms Siu had the following WhatsApp N communication with the OC Case: O O P P OC Case Salina Siu Let me know what’s happening inside Q Q (09:23) Li is in the room near Court 6. I’m in the R R other room (09:23) S S OK! Rosa is talking to them at last night issue T (09:24) T U U V V  - 39 - A A B B The defence just replied “he is lying” (09:25) C C Rosa showed them wtsapp conversation [emoji] [emoji] D (09:25) D Court haven’t start yet Rosa just told D1’s E counsel about Johnny E (09:30) F They are still finding ways to make copy, F Court haven’t start yet (10:08) G G H 15. The Prosecutor then reported the matter to the Court. It was H explained that the OC Case never spoke to Li; she only spoke to the Court I I CSD Liaison officer, Mr Wong Pak Wing (the Liaison Officer). The J Defence was then given an opportunity to cross-examine the OC Case J about the circumstances of her conversation with the Liaison Officer. K K L 16. The OC Case testified that she received a telephone call from L the Liaison Officer earlier at about 1830 hours on the same evening. She M M stated that they only spoke for a few minutes. The OC Case’s mobile N telephone was handed over for the parties for inspection. The call record N O showed that the Liaison Officer had called the OC case at 1845 hours the O previous evening and that the call lasted for 22 minutes. The OC Case sent P P the WhatsApp messages to the Prosecutor after this conversation. Q Q 17. The OC case further disclosed during her testimony that the R R Liaison Officer has been sending CSD officers to sit in the public gallery S to monitor the trial and report on the proceedings. The Court then S discovered that there were 2 CSD officers on duty in the public gallery that T T morning. U U V V  - 40 - A A B B C 18. In those circumstances, the Defence was given an opportunity C to cross examine the 2 CSD officers who were sitting in the public gallery. D D One of them confirmed that the Liaison Officer had instructed him to attend E court and take notes of the proceedings. This officer’s note was shown to E the parties (MFI-3). F F G 19. The Liaison Officer then attended court to testify. D3’s G counsel has helpfully summarised the evidence of the Prosecutor and the H H Liaison Officer in respect of the telephone call in a table: I I OC Case Liaison Officer (Wong) J J When I received the call, I was on my way home. I was buying groceries from the wet K market. I talked with Wong along the way. K It was raining and I was carrying a lot of L things. I have children and when I got L home I had to do chores and look after my children. M M I wasn’t expecting the call from Wong. I just listened to what he had to say to N N understand what sort of message he would like me to deliver. I had some free time to O deal with this matter at 7:55 pm. I wanted O to pass the message from the CSD to the prosecutor plus my own understanding P P I enquired about the procedures and Q Q progress of the case in court, upcoming witnesses arrangement, progress and R procedure of Li’s evidence, court R appearance arrangement for Li on the next day and whether he has to wait in S court at 9:30. S T T U U V V  - 41 - A A B B Wong was aware of what happened in I sent one officer to sit in court every day court from what he has been told by his and report to me after court. C colleagues who listened to the C proceedings in court. On first day of trial I saw a gentleman in the public gallery. I D D asked Ms Siu to confirm if he was a CSD officer and she did. He had been in court E every day since but not today. E Wong said he was not sure whether Li has I asked the officer who sat in court what F expressed himself clearly in court as to the Li was challenged on. I was told that it F voice identification. He asked me if I was in respect of the voice identification. G could ask the prosecutor to give Li an I did not ask further. That is why I asked G opportunity to clarify his evidence during the OC case if the prosecutor could ask re-examination. I said I would ask the about it in re-examination. H prosecutor if there is such a need. H I Wong did not mention what Li wanted. I I mentioned during Li’s testimony, Li was I made a mistake when I typed my message questioned by one of the defence counsel beginning with “Li wish”. Maybe I was as to whether he was making things up J thinking that Li would like to relay to the regarding the voice identification. I J prosecutor, I replied by saying I would therefore asked the OC Case whether the relay that to the prosecutor. prosecutor would deal with this issue K K during re-examination. L I did not tell the OC case that Li could L recognise the voice because of the visits and not during the routine patrol. M M I called Li afterwards to tell him that he N has to return to his work post after N finishing his court duties. O O Some security issues arose in the institution the previous week. The main P purpose of the call to Li was for him to P follow up those issues when he goes back to work. I reminded him that he had to Q Q attend court the following day and that he was not to speak to anyone about this R case. R S S T T U U V V  - 42 - A A B B 20. The Liaison Officer’s mobile telephone was handed over to C the parties for inspection. The call record shows that the Liaison Officer C called Li as soon as he finished speaking to the OC Case (at 7:18 pm) and D D spoke to Li for over 10 minutes. E E 21. Li resumed his testimony on day 7 of the trial. He was cross- F F examined about his telephone call with the Liaison Officer. Li stated that G there was a security incident in Pik Uk Prison and the Liaison Officer had G instructed Li to follow up the matter. The Liaison Officer knew that Li had H H not yet completed his evidence, reminded him not to speak to anyone about I this case and to be punctual in attending court. I J J 22. Li’s personal and work telephones were handed over to the K parties for inspection. Li then disclosed that he had deleted all the call K records on these telephones. He explained that he had a habit of deleting L L all his call records every day to prevent security risks. However, inspection M of his telephones revealed that they contained: M N N (1) photographs of the HKID cards of Li’s wife, his son O and domestic helper; O (2) Li’s HSBC bank account number; P P (3) D3’s prisoner visit record taken at 7:46 pm the previous Q Q evening; R (4) A document entitled “Internal Investigation Note”; and R (5) The front page of Li’s witness statement in this case. S S T T U U V V  - 43 - A A B B 23. Li agreed to retrieve the call records of his personal telephone C from SmarTone. The Prosecution would obtain the call records of Li’s C work telephone from China Mobile. Li was informed that the police could D D retrieve deleted messages from his mobile telephones. He was happy to E hand his telephones to the police but exercised his right not to provide his E passwords. As a result, the police could not retrieve any messages from F F Li’s telephones. G G 24. On the following day (day 8, 19 December 2022), the H H Prosecutor informed the Court that Li had submitted a medical chit. He had I been granted 2 days’ sick leave for anxiety and depression. The hearing I was adjourned to 21 December 2022. J J K 25. On day 9 (21 December 2022), the Court was informed that K Li’s sick leave for anxiety and depression has been extended until 28 L L December 2022. The hearing was further adjourned to 29 December 2022. M M 26. On day 10 (29 December 2022), the Court was informed that N N Li’s sick leave for anxiety and depression had been extended until 6 O January 2023 (which was 2 days after the scheduled fixture for this case). O The case was further adjourned to 3 February 2023 for mention. P P Q Q 27. On day 11 (3 February 2023), the Court was informed that R Li’s sick leave concluded on 28 January 2023 and he has resumed duty. R The case was fixed for hearing on 27 March 2023. S S T 28. Li resumed his testimony on day 12 (27 March 2023). By this T time, the deleted call records were available. U U V V  - 44 - A A B B C 29. A summary of all the disclosed call records revealed: C D D Date/Time Caller/Event Recipient Duration E 5/12/2022 Liaison Officer OC Case 6’00” E (Personal mobile) (Mobile) F 6/12/2022 Liaison Officer OC case 1’00” F (Personal mobile) (Mobile) G 7/12/2022 Liaison Officer OC case 0’08” G (Personal mobile) (Mobile) H 13/12/2022 PW9 testified H 09:40-16:30 I 13/12/2022 Liaison Officer OC Case 22’00” I 18:55-19:17 (Personal mobile) (Mobile) J 13/12/2022 Liaison Officer Li 10’18” J 19:18:10-19:28:28 (Personal mobile) (Personal mobile) K 13/12/2022 WhatsApp between OC K 19:53-19:56 case and the Prosecutor L 14/12/2022 Liaison Officer Li 6’03” L 07:26:25-07:32:28 (Office land line) (Personal mobile) M 14/12/2022 CSD Wanchai Office Li 2’58” M 07:43:49-07:46:38 (Personal mobile) N 14/12/2022 CSD Wanchai Office Li 7’15” N 07:48:06-07:55:21 (Personal mobile) O 14/12/2022 OC case Li 1’00” O 08:06:30-08:07:30 (Land line) (Work mobile) P 14/12/2022 Liaison Officer Li 2’05” P 09:17:30-09:19:35 (Work mobile) (Personal mobile) Q 14/12/2022 WhatsApp Q 09:23-10:08 communications between OC Case and R R Ms Siu 14/12/2022 Li waited at court to S S resume evidence T 14/12/2022 CSD Wanchai Office Li 0’4” T 19:03:35-10:03:39 (Personal mobile) U U V V  - 45 - A A B B Date/Time Caller/Event Recipient Duration C 14/12/2022 OC case testified C 10:55-13:02 Mobile phones and notebook of CSD D officers in court handed D over E 14/12/2022 CSD Wanchai Office Li 0’34” E (Personal mobile) F 14/12/2022 Ms Siu Li 0’29” F (Personal mobile) (Personal mobile) G 14/12/2022 Liaison Officer Li 0’36” G 13:32:46-13:33:22 (Office land line) (Personal mobile) H 14/12/2022 CSD Wanchai Office Li 0’43” H 13:38:15-13:38:58 (Personal mobile) I 14/12/2022 Li CSD Wanchai 1’00” I 13:40:01-13:41:01 (Work mobile) Office J 14/12/2022 OC Case, 2 CSD J 14:45-16:25 officers in court and K Liaison Officer testified K 15/12/2022 Cross examination of Li L 09:40-09:51 by D1 L 15/12/2922 Li’s mobile telephone M 09:52-10:15 inspected by counsel, M all call records have been deleted N N 15/12/2022 Cross examination of Li 10:16-10:19 by D1 O O 15/12/2022 Parties took screen 10:29-11:39 shots of Li’s mobile P telephone (MFI-4) P 15/12/2022 Cross examination of Li Q by D2 Q 15/11/2022 Li CSD Wanchai 4’00” R 12:36:49-12:40:49 (Work mobile) Office R 15/12/2022 Li CSD Wanchai 6’00” S 12:53:23-12:58:23 (Work mobile) Office S 15/12/2022 Li CSD Wanchai 1’00” T 13:17:01-13:18:01 (Work mobile) Office T U U V V  - 46 - A A B B Date/Time Caller/Event Recipient Duration C 15/12/2922 Li CSD Wanchai 7’00” C 13:32:12-13:39:12 (Work mobile) Office D 15/12/2022 Li CSD Wanchai 1’00” D 13:40:07-13:41:07 (Work mobile) Office E 15/12/2022 Li CSD Wanchai 1’00” E 13:49:07-13:41:07 (Work mobile) office F 15/12/2022 Li cross examined by F 15:05-15:30 D3 G G 30. The above call records show that there were 5 telephone H H conversations between Li and the Liaison Officer or the CSD staff in the I morning of day 6 (14/12/2022) of the trial when Li was incommunicado. I Further, during lunch time, when Li was supposed to be retrieving his J J deleted call records, there were a further 5 telephone conversations K between Li and the Wanchai CSD office where the Liaison Officer worked. K L L 31. Li was further cross examined by D3 about the voice M recognition of the covert audio recording and Li’s various conversations M with the Liaison Officer. Li stated he could no longer remember anything. N N O 32. On day 15 of the trial, the arresting officer of D1, Mr Chan O Kin Hing (Mr Chan) was tendered for cross examination pursuant to D3’s P P request. During cross examination, Mr Chan was shown the footages of the Q CCTV installed at the door and inside D1’s residence. The footages Q showed that the ICAC officers were taking D1 to the ICAC. At that time, R R no house search was conducted, as the ICAC were still waiting for a search S warrant. When D1 was at the door of his residence, he suddenly turned S back and shouted to his helper, telling her to throw away all his electronic T T devices and valuable items. Upon hearing this, the ICAC officers pushed U U V V  - 47 - A A B B D1 against a wall and handcuffed him from the back. The ICAC officers C held D1 against the wall, Mr Chan pushed D1’s upper body against the C wall several times. D1 was then taken back into his residence and was D D ordered to kneel. E E The Grounds of Application F F G 33. D1, D3 and D4 are now applying for a permanent stay of G proceedings on the following grounds: H H I (1) The trial of these proceedings have been subjected to I monitoring and interference by the Liaison Officer. The J J collusion and the attempt to pervert the course of K Justice by Li and the Liaison Officer makes a fair trial K impossible; L L M (2) D1 was assaulted by the ICAC officers. M N N 34. It was revealed during submissions in this application that O parts of the covert audio recording (that was not covered by public interest O immunity) has been edited out by an ICAC officer who was not involved P P in the investigation. In those circumstances, D1 also relied on a further Q Q ground that there was a failure to make disclosure. R R 35. The Prosecution explained that those parts were “screened S S out” because they were irrelevant and that the Prosecution has no T knowledge of the contents of the parts that were “screened out”. The Court T pointed out that those parts may be irrelevant to the prosecution, but the U U V V  - 48 - A A B B Defence are entitled to disclosure. The Prosecution confirmed that the C original of the covert audio-recording was still in existence and then agreed C to provide the Defence with the “screened out” conversations which are D D not covered by public interest immunity. The disclosure revealed that the E edited parts were indeed irrelevant. Upon such disclosure, D1’s counsel E confirmed that he was no longer pursuing this ground. F F G Legal Principles G H H 36. The law in respect of a permanent stay of proceedings is well I settled and does not appear to be in dispute. I J J 37. In HKSAR v Lee Ming Tee [2001] 1 HKLRD 599, the Court K of Final Appeal stated at pages 12-: K L L “C. The jurisdiction to stay criminal proceedings M 39. The decision whether or not to bring a prosecution falls M entirely within the province of the Secretary for Justice: Basic N Law, Art 63. In general, if a prosecution is brought, the court’s N duty is to try the case. As Lord Morris (quoting with approval the ruling of the trial judge in that case) stated in Connelly v DPP O [1964] AC 1254 at 1304: O “… generally speaking a prosecutor has as much right as P P a defendant to demand a verdict of a jury on an outstanding indictment and where either demands a Q verdict a judge has no jurisdiction to stand in the way of Q it.” R R The trial of course proceeds in the vast majority of cases. However, the court also unquestionably has jurisdiction to stay S criminal proceedings brought by the Secretary in exceptional S cases where such a course is justified. That jurisdiction rests on the court’s inherent power to prevent abuse of its own process: T Connelly v DPP [1964] AC 1254 at 1354, 1361. T U U V V  - 49 - A A B 40. In most such cases, the court only grants the stay because B notwithstanding the range of remedial measures available at C trial, a fair trial for the accused is found to be impossible and C continuing the prosecution would amount to an abuse of process. In Jago v The District Court of New South Wales [1989] 168 D CLR 23 at 30, Mason CJ put it as follows: D E “The continuance of processes which will culminate in E an unfair trial can be seen as ‘misuse of the court process’ which will constitute an abuse of process because the F public interest in holding a trial does not warrant the F holding of an unfair trial.” G G His Honour formulated the question arising on such applications for a stay as follows: H H “The question is not whether the prosecution should have been brought, but whether the court, whose function is to I dispense justice with impartiality and fairness both to the I parties and to the community which it serves, should J permit its processed to be employed in a manner which J gives rise to unfairness” (at 28) K This approach is demonstrated in cases where the accused seeks K a stay on the ground of delay… L L 41. Other matters, apart from delay, have sometimes been relied on in attempts to stay proceedings. Lord Lane CJ gave M examples:- M “The abuse alleged may arise in many different forms. It N N may involve complaints about the methods used to investigate the offence: see Reg v Heston-Fransçois O [1984] QB 278. It may be based as Connelly v Director O of Public Prosecutions [1964] AC 1254 itself was, on the allegation that the defendant is being prosecuted more P than once for what is in effect the same offence. It may P be a misuse of the process of the court to escape statutory Q time limits: see Reg v Brentford Justices, Ex parte Wong Q [1981] QB 445.” (Attorney-General’s Reference (No 1 of 1990) [1992] QB 630 at 641) R R One may add to the list the ground relied on in the present appeal, namely prejudicial pre-trial publicity, considered more fully S S below. However, the common thread in these authorities is the requirement that a fair trial has become impossible, making T continuance of the prosecution an abuse of the court’s process. T U U V V  - 50 - A A B 42. A second line of stay cases, also relied on in the present B appeal, proceeds on a different basis. There are the rare cases C where the court is prepared to grant a permanent stay even C though a fair trial undoubtedly remains possible. The leading authority is the decision of the House of Lords in R v Horseferry D Road Magistrates’ Court, Ex parte Bennett [1994] 1 AC 42, D where, although the fairness of the trial was not in question, the E court granted a stay because the circumstances involved an abuse E of power which so offended the court’s sense of justice and propriety that the entire prosecution was tainted as an abuse of F process. F 43. While the jurisdiction on this dual basis clearly exists, it G G is only most sparingly exercised: Tan v Cameron [1992] 2 AC 205 at 221; Jago v The District Court of New South Wales [1989] H 168 CLR 23 at 31; Ex parte Bennett [1994] 1 AC 42 at 74. H 44. There are cogent reasons why in principle and in practice I such stats are highly exceptional. I J 45. In the first place, it is only in very unusual circumstances J that a court can properly be satisfied that a fair trial is “impossible”. The “fairness” achievable is judged in practical K and not absolute terms. As Brennan J pointed out in Jago v The K District Court of New South Wales [1989] 168 CLR 23 at 49:- L L “If it be said that judicial measures cannot always secure perfect justice to an accused, we should ask whether the M ideal of perfect justice has not sounded in rhetoric rather M than in law and whether the legal right of an accused, truly stated, is a right to a trial as fair as the courts can N N make it. Were it otherwise, trials would be prevented and convictions would be set aside when circumstances O outside judicial control impair absolute fairness.” O 46. More importantly, the court’s primary endeavour is to P ensure that a fair trial takes place, employing the law’s available P resources, and not to abort it on the ground that fairness cannot Q be attained, save as a last resort. To quote Brennan J again:- Q “A power to ensure a fair trial is not a power to stop a R trial before it starts. It is a power to mould the procedures R of the trial to avoid or minimise prejudice to either party.” (Ibid at 46) S S His honour continued:- T T “Obstacles in the way of a fair trial are often encountered in administering criminal justice. Adverse publicity in U U V V  - 51 - A A B the reporting of notorious crimes (Murphy v The Queen B [1989] 63 ALJR 422; 86 ALR 35 ), adverse revelations C in a public inquiry (Victoria v Australian Building C Construction Employees’ and Builders Labourers’ Federation [1982] 152 CLR 25), absence of competent D representation (McInnis v The Queen [1979] 143 CLR D 575; MacPherson v The Queen [1981] 147 CLR 512) or E the death or unavailability of a witness, may present E obstacles to a fair trial; but they do not cause the proceedings to be permanently stayed. Unfairness F occasioned by circumstances outside the court’s control F does not make the trial a source of unfairness. When an obstacle to a fair trial is encountered, the responsibility G G cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the H responsibility is not discharged by refusing to exercise H the jurisdiction to hear and determine the issues. The responsibility is discharged by controlling the procedures I of the trial by adjournments or other interlocutory orders, I by rulings on evidence and, especially, by directions to J the jury designed to counteract any prejudice which the J accused might otherwise suffer”. (at 47) K Secondly, in cases where a fair trial remains possible even K though official misconduct may be involved in the bringing of L the prosecution, the court does not exercise the jurisdiction to L stay proceedings as a means of disciplining the police or prosecuting authorities. As Lord Lowry put it in Ex parte Bennett M (at 74-75):- M “The discretion to stay is not a disciplinary jurisdiction N N and ought not to be exercised in order to express the court’s disapproval of official conduct. Accordingly, if O the prosecuting authorities have been guilty of culpable O delay but the prospect of a fair trial has not been prejudiced, the court ought not to stay the proceedings P merely ‘pour encourager les autres.’” P Q The public interest lies in the guilt or innocence of the accused Q being fairly and openly determined at trial. For this to be displaced, powerful reasons must exist for concluding that such R a trial, although fair, would nonetheless constitute an intolerable R abuse of the court’s process. The instances where such an argument has any prospects of success must necessarily be very S S rare. T 47. Thirdly, in cases where the ground on which a stay is T sought concerns alleged unfairness in the use of particular classes or items of evidence, the courts, for procedural reasons, U U V V  - 52 - A A B are extremely reluctant to determine the evidential questions on B a stay application. This is because the fairness of using the C evidence may be incapable of evaluation prior to the trial itself. C The impact of such evidence on the fairness of the trial may need to be considered in the context of the evidence as a whole so that D the question may best be dealt with as a question of admissibility D to be determined by the trial judge and possibly made subject to E his residual discretion to exclude the same: R v Hertfordshire E County Council, Ex parte Green Environmental Industries Ltd [2000] AC 412; Clinton v Bradley [2000] NIECA 8 at para 17. F F … G G 146. The rarity of situations where a stay is justified even though the fairness of the trial is not in doubt has been mentioned H in section C of this judgment. In R v Horseferry Road H Magistrates’ Court Ex parte Bennett [1994] 1 AC 42, where such a stay was granted, the abuse was (on assumed facts) extreme. I Lord Bridge described it in the following terms:- I J “… the prosecuting authority secured the prisoner’s J presence within the territorial jurisdiction of the court by forcibly abducting him from within the jurisdiction of K some other state, in violation of international law, in K violation of the laws of the state from which he was L abducted, in violation of whatever rights he enjoyed L under the laws of that state and in disregard of available procedures to secure his lawful extradition to this country M from the state where he was residing…” (at 64) M It was an abuse which his Lordship described as calling into N N question “the maintenance of the rule of law itself” (at 67). Moreover, but for such abuse, the accused would not have been O brought within the court’s jurisdiction at all, plainly a reason for O suggesting that the court should decline to exercise jurisdiction so unacceptably acquired. As Lord Lowry described it, the case P was one in which:- P Q “… it offends the court’s sense of justice and propriety Q to be asked to try the accused in the circumstances.” (At 74) R R 147. In R v Latif [1996] 1 WLR 104, the House of Lords gave valuable guidance as to how such applications should be S S approached. Lord Steyn, with whom the other Law Lords agreed, pointed out that where some form of official misconduct was T involved in the alleged abuse of process, the court is faced with T a “perennial dilemma”:- U U V V  - 53 - A A B “If the court always refuses to stay such proceedings, the B perception will be that the court condones criminal C conduct and malpractice by law enforcement agencies. C This would undermine public confidence in the criminal justice system and bring it into disrepute. On the other D hand, if the court were always to stay proceedings in such D cases, it would incur the reproach that it is failing to E protect the public from serious crime.” (at 112) E The solution adopted was as follows:- F F “The weaknesses of both extreme positions leaves only one principled solution. The court has a discretion: it has G G to perform a balancing exercise. If the court concludes that a fair trial is not possible, it will stay the proceedings. H That is not what the present case is concerned with. It is H plain that a fair trial was possible and that such trial took place. In this case the issue is whether, despite the fact I that a fair trial was possible, the judge ought to have I stayed the criminal proceedings on broader J considerations of the integrity of the criminal justice J system. The law is settled. Weighing countervailing considerations of policy and justice, it is for the judge in K the exercise of his discretion to decide whether there has K been an abuse of process, which amounts to an affront to L the public conscience and requires the criminal L proceedings to be stayed: Reg v Horseferry Road Magistrates’ Courts: Ex parte Bennett [1994] 1 AC 42.” M (at 112) M Lord Steyn added:- N N “The speeches in Ex parte Bennett conclusively establish O that proceedings may be stayed in the exercise of the O judge’s discretion not only where a fair trial is impossible but also where it would be contrary to the public interest P in the integrity of the criminal justice system that a trial P should take place. An infinite variety of cases could arise. Q General guidance as to how the discretion should be Q exercised in particular circumstances will not be useful. But it is possible to say that in a case such as the present R the judge must weigh in the balance the public interest in R ensuring that those that are charged with grave crimes should be tried and the competing public interest in not S S conveying the impression that the court will adopt the approach that the end justifies any means.” (at 112-3)” T T U U V V  - 54 - A A B B 38. The principles enunciated in Lee Ming Tee (supra) were C succinctly summarised by the Court of Appeal in HKSAR v Ng Chun To C Raymond & Another [2013] 5 HKC 390. In paras 84-108, the Court of D D Appeal stated: E E “84. The circumstances in which, in the exercise of a court’s F discretion, a stay of proceedings will be justified are exceptional. F Those circumstances are explained by Ribeiro PJ in HKSAR v Lee Ming Tee & anor. “In general”, he said “if a prosecution is G brought, the court’s duty is to try the case”; since “generally G speaking a prosecutor has as much right as a defendant to H demand a verdict… on an outstanding indictment, and where H either demands a verdict a judge has no jurisdiction to stand in the way of it.” But in exercise of its inherent power to prevent an I abuse of its own process, the court has jurisdiction to stay I criminal proceedings in two circumstances: J J (1) where, notwithstanding the remedial measures which are available to a court to ensure a fair trial, the K circumstances are such that “a fair trial for the accused is K found to be impossible and continuing the prosecution would amount to an abuse of process.” (emphasis added) L That is because “the continuation of processes which will L culminate in an unfair trial can be seen as a ‘misuse of M the court process’ which will constitute an abuse of M process because the public interest in holding a trial does not warrant the holding of an unfair trial.” The burden is N on the accused to show in a balance of probabilities that N no fair trial can be held. The basis upon which such O applications tend to be mounted include delay, unfair O methods of investigation, and pre-trial publicity; and P (2) in rare cases where, even though a fair trial is available, P the court is prepared to grant a permanent stay, because there has been an abuse of power of a kind that renders Q Q the trial of the accused an affront to the court’s sense of justice and propriety. An example is the refusal of a court R to exercise jurisdiction over an accused who has been R unlawfully abducted from another jurisdiction. S 85. The cases in the second category will be rare since: S T “The public interest lies in the guilt or innocence of the T accused being fairly and openly determined at trial. For this to be displaced, powerful reasons must exist for U U V V  - 55 - A A B concluding that such a trial, although fair, would B nonetheless constitute an intolerable abuse of the court’s C process. The instances where such an argument has any C prospect of success must necessarily be very rare.” D 86. Highly relevant for the purpose of the present case is the D injunction not to utilise the discretion to stay for the purpose of E disciplining the individual or body guilty of the abuse of power E which has been demonstrated: F “The discretion to stay, it’s not a disciplinary jurisdiction F and ought not to be exercised in order to express the court’s disapproval of official conduct.” G G 87. The key question in the second category of case is, H therefore, not whether, without more, the court is offended, or H even outraged by the prosecutorial misconduct disclosed; and it is not whether the public, possessed of the facts, would be I offended or outraged by the misconduct. It is, rather, whether I “the court’s sense of justice and propriety” or, one should add, J public confidence in the proper administration of justice, is or J would be offended “if [the court] is asked to try the accused in the particular circumstances of the case.” (emphasis added). K K 88. That is what distinguishes the punitive of disciplinary L function, which is not the court’s remit, from that which is the L court’s remit, namely, to administer justice in individual cases by a process the integrity of which remains intact. The fact of M prosecutorial misconduct in connection with a criminal case does M not necessarily undermine the integrity of and respect for the process; for where the weaponry available to a court in the course N N of a trial is such as to ensure a fair trial, the integrity of the process is maintained, as it is where, assuming the prospect of a O fair trial, the circumstances as a whole such that, notwithstanding O the investigative or prosecutorial misconduct in the case, proceeding with the trial of the accused does not affect the P court’s sense of justice and propriety or bring the criminal justice P system into disrepute. Q Q 89. It has been said that “[i]t may not always be easy to distinguish between (impermissibly) granted a stay ‘in order to R express the court disapproval of official conduct pour encourager R les autres’ and (permissibly) granting a stay because it offends the court’s sense of justice and propriety”; but we suggest that it S S is easier to make the distinction if one remembers that Lord Lowry in Bennett added to the phrase “it offends the court’s T sense of justice and propriety” the words “to be asked to try the T accused in the circumstances.” Since that is the relevant question in application of the second limb of the abuse test, it is U U V V  - 56 - A A B all the circumstances that require to be considered; not just the B misconduct, but all factors in the particular case that touch upon C that question including, but not limited to, the gravity of the C offence with which the accused is charged, the availability of a sanction against the miscreant, and whether the misconduct was D perpetrated in bad faith or in circumstances of urgency. An D example of a relevant circumstance emerges from the Reasons E for Verdict in the trial of the three officers, that CCH was E “deliberately leading the [officers] on during the meetings”, encouraging them to coach him; as it happens, that does not F appear from the ruling upon CCH’s application for a stay in his F own trial to have featured in the balancing exercise undertaken by Judge Tallentire but it is an example which serves the purpose G G of illustrating how varied the relevant circumstances can be. H 90. The distinction between the two approaches, the one H permissible, the other impermissible, requires emphasis because the author of the judgment in HKSAR v Wong Hung Ki is I satisfied, despite the urging of counsel for the applicants, that the I reasons for judgment in that case obscured the distinction at the J risk of taking the impermissible route; have you shared by the J other members of the presently constituted court. Since a number of passages in that judgment, if followed, risk leading advisers K astray, we must deal with them. K L 91. The facts of Wong Hung Ki have been referred to earlier L in this judgment. It was a case in which ICAC officers took a tape recording of a conversation between an accused person and M legal advisors, and listened to the tape recording when they knew M or ought to have known that the conversation was one covered by legal professional privilege. In the course of summarising key N N principles Stock VP said: O “… there will be circumstances, though rare indeed, in O which, despite the availability of a fair trial, an abuse of power so offends the court’s sense of justice and P propriety or, put another way, is of such a kind as to P affront the court’s sense of justice and propriety with Q severe consequences for public confidence in the Q administration of justice, that the court may feel duty- bound to exercise its discretion to order a stay of R proceedings.” R 92. The court then expressed its view that: S S “In general… where there is a deliberate violation of a T suspected person’s right to legal professional privilege, T that constitutes an affront so great as to the integrity of the system of justice and therefore the rule of law that U U V V  - 57 - A A B ‘the associated prosecution is rendered abusive and ought B not to be countenanced by the court’.” C C 93. The citation in the passage was from R v Grant, a decision of the Court of Appeal of England and Wales which has D since in material part been disapproved by the Privy Council in D Warren v Attorney General for Jersey, to which latter case we E shall shortly turn. E 94. In the closing stages of his judgment, the court in Wong F Hung Ki said, further, that: F “94. At the end of the day and assessment has to be G G made by the court based on experience, with an appreciation of the fact, that operational considerations H often require difficult decisions but, at the same time, H with due regard to the rule of law’s requirement that its underpinning principles be respected and not deliberately I flouted. In our judgment, the evidence in this case I displayed on the part of the ICAC offices who took the J key decisions, particularly the decision to listen to the J recorded conversation, either a cavalier approach to privileged communications or a failure to appreciate the K nature and importance of the principle. It matters not K which it was, for if it was the latter, it is a failure on a L fundamental issue which cannot be countenanced in the L case of a law enforcement authority operating in a society governed by the rule of law. M M 95. For these reasons, we determined that there had been an abuse of process which was an affront to the N N conscience of the court and to which the court should not lend itself by permitting the proceedings to continue and, O accordingly, we ordered a stay of proceedings.” O 95. The problem with these passages is twofold: P P (1) They are likely be read as suggesting that a deliberate Q snub to the rule of law may give rise to such a sense of Q outrage as of itself to warrant, a stay of proceedings. Whether or not the court conducted a balancing exercise R with other factors in the scales – a question which at this R stage may be difficult, and in any event inappropriate, to answer – is not the point. The point is that in so far as S S those passages suggest that curial outrage at prosecutorial misconduct of itself suffices to warrant a T stay of proceedings under the second limb of the abuse T principles, they mis-state the law and should not be followed. U U V V  - 58 - A A B B (2) The suggestion that in general a deliberate violation of a C suspected person’s right to legal professional privilege of C itself renders the associated prosecution an abuse is a suggestion which goes too far for, again, it concentrates D on the misconduct to the exclusion of other factors and D detracts from the relevant question which is whether a E trial of the accused in the particular case is in all the E prevailing case-specific circumstances an affront to the conscience of the court or an event which would F undermine public confidence in the administration of F justice. G G 96. These errors in approach become apparent by revisiting Lee Ming Tee and by a study of the judgments in Warren. H H 97. The basis of the application for a stay in Warren was that the only evidence against the defendants, charged with I conspiracy to import a large quantity of cannabis into Jersey I from the Netherlands, had been obtained by police monitoring of J incriminating conversations between one of the defendants and J a co-conspirator upon collection of the consignment of drugs in Amsterdam. Authority for fitting a tracking and audio device in K that defendant’s vehicle in Jersey had been obtained from the K Jersey authorities but the permission of the authorities of certain L of the Continental countries through which that defendant L travelled, to fit audio devices and through them eavesdrop on conversations, had not been secured. A senior prosecutor in M Jersey advised that evidence procured by means of an audio M device for the use for which no consent had been obtained from the authorities of the Continental countries was, notwithstanding N N the lack of consent, unlikely to be excluded in the Jersey proceedings. The Jersey officers fitted the defendant’s car with O a tracking and an audio device. Unexpectedly, the defendant O changed his plans, travelled to France aboard a ferry and then hired another car in France with which he drove to Amsterdam. P The officers, notified of the sudden change of plan, requested P assistance from the French police in deploying a tracking device Q in the hire vehicle but deliberately did not raise the issue of the Q audio device. In the result, the officers acted unlawfully in a foreign jurisdiction and engaged in deliberate deceit of their R French counterparts. The Commissioner in Jersey held that the R balance of factors fell in favour of refusing a stay; the Jersey Court of Appeal refused the defendants leave to appeal; and in S S due course, the defendants were convicted. The judgments to which we now turn are those in the subsequent unsuccessful T appeal to the Privy Council. T U U V V  - 59 - A A B 98. Lord Dyson traversed key passages from past authorities B and one from an academic text, including: C C (1) R v Maxwell in which Lord Dyson had said that it was: D “… well established that the court has the power to stay D proceedings in two categories of case, namely (i) where E it will be impossible to give the accused a fair trial, and E (ii) where it offends the court’s sense of justice and propriety to be asked to try the accused in the particular F circumstances of the case. In the first category of case, if F the court concludes that an accused cannot receive a fair trial, it will stay the proceedings without more. No G G question of the balancing of competing interests arises. In the second category of case, the court is concerned to H protect the integrity of the criminal justice system. Here H a stay will be granted where the court concludes that in all the circumstances a trial will ‘offend the court’s sense I of justice and propriety’ (per Lord Lowry in … Ex p I Bennett…) or will ‘undermine public confidence in the J criminal justice system and bring it into disrepute’ (per J Lord Steyn in R v Latif [1996] 1 WLR 104, 112F).” (emphasis added) K K (2) Ex parte Bennett to which we have earlier referred and to L which the passage in Maxwell referred; but the present L point is that in referring to Ex p Bennett Lord Dyson commented that: M M “It is true that in Ex p Bennett the need for a balancing exercise was not mentioned, but that is no doubt because N N the House of Lords considered that the balance obviously came down in favour of a stay on the facts of that case O (the kidnapping of a New Zealand citizen to face trial in O England).” P (3) Latif in which Lord Steyn had said that: P Q “Weighing countervailing considerations of policy and Q justice, it is for the judge in the exercise of his discretion to decide whether there has been an abuse of process, R which amounts to an affront to the public conscience and R requires the criminal proceedings to be stayed… . The speeches in Ex p Bennett conclusively established that S S proceedings may be stayed in the exercise of the judge’s discretion not only where a fair trial is impossible but T also where it would be contrary to the public interest in T the integrity of the criminal justice system that a trial should take place. An infinite variety of cases could U U V V  - 60 - A A B arise. General guidance as to how the discretion should B be exercised in particular circumstances will not be C useful. But it is possible to say that in a case such as the C present the judge must weigh in the balance the public interest in ensuring that those that are charged with grave D crimes should be tried and the competing public interest D in not conveying the impression that the court will adopt E the approach that the end justifies any means.” E (Emphasis added) F (4)(i) An extract from Professor Andrew L-Y Choo’s book on F abuse of criminal proceedings, in which in relation to the second category of case, Professor Choo said: G G “The courts would appear to have left the matter at a H general level, requiring a determination to be made in H particular cases of whether the continuation of the proceedings would compromise the moral integrity of the I criminal justice system to an unacceptable degree. I Implicitly at least, this determination involves J performing a ‘balancing’ test that takes into account such J factors as the seriousness of any violation of the defendant’s (or even a third party’s) rights; whether the K police had acted in bad faith or maliciously, or with an K improper motive; whether the misconduct was L committed in circumstances of urgency, emergency or L necessity; the availability or otherwise of direct sanction against the person(s) responsible for the misconduct; and M the seriousness of the offence with which the defendant M is charged.” N N (ii) Their Lordships in Warren endorsed that passage from Professor Choo’s work as a useful summary of factors O frequently taken into account in application of the O required balancing exercise adding, however, that: P “… it is also necessary to keep in mind [Lord Steyn’s] P salutary words [in Latif] that an infinite variety of cases Q can arise and how the discretion should be exercised will Q depend on the particular circumstances of the case.” R 99. We lift these cited passages from Lord Dyson’s judgment R because they ring with the recurrent theme that the test for the second category of case in which a stay may be warranted is not S S blinkered by a singular focus upon the nature and magnitude of the misconduct but is one which, instead, addresses the question T whether, in the face of all the circumstances, the prospect of T trying the defendant for the offence or offences with which he is charged offends the court’s sense of justice and propriety or is U U V V  - 61 - A A B likely to undermine public confidence in the criminal justice B system and bring it into disrepute. Since that is the correct C approach, its application necessarily involves a balancing C exercise. D 100. The judgment in Grant is one which influenced the D decision in Wong Hung Ki. Grant was a case of deliberate E infringement of legal professional privilege and the Court of E Appeal (England and Wales) said, in a passage which finds an echo in Wong Hung Ki, that : F F “… we are in no doubt that in general unlawful acts of the kind done in this case, amounting to a deliberate G G violation of a suspected person’s right to legal professional privilege, is so great an affront to the H integrity of the justice system, and therefore the rule of H law, that the associated prosecution is rendered abusive and ought not to be countenanced by the court.” I I 101. Their Lordships in Warren were satisfied that the J decision in Grant was wrong in that whilst a deliberate invasion J of a suspect’s right to legal professional privilege was indeed “a serious affront to the integrity of the justice system which may K often lead to the conclusion the proceedings should be stayed”, K nonetheless: L L “… the particular circumstances of each case must be considered and carefully weighed in the balance. It was M obviously right to hold on the facts in R v Grant that the M gravity of the misconduct was a factor which militated in favour of a stay. But as against that, the accused was N N charged with a most serious crime and, crucially, the misconduct caused no prejudice to the accused. This was O not even a case where the ‘but for’ fact had a part to play. O The misconduct had no influence on the proceedings at all.” P P 102. The Board concluded that it was “difficult to avoid the Q conclusion that in Grant the proceedings were stayed in order to Q express the court’s disapproval of police misconduct and to discipline the police”; a flaw in approach which might also be R thought to taint the decision in Wong Hung Ki. R 103. Counsel for the respondent in Warren contended that it S S was possible to identify categories of cases where the court will always grant a stay; for example, he suggested, unlawful T abduction; entrapment; and prosecutions in breach of a prior T assurance that there would be no prosecution. These are situations which reflect a suggested “but for” test; in other words U U V V  - 62 - A A B where, but for the abuse of power, there would not have been a B trial. The Board rejected the idea that such a test “will always or C even in most cases necessarily determine whether a stay should C be granted on grounds of abuse of process”. It was, however, clearly a relevant factor. D D 104. The result of all this is to remind the courts faced with a E stay application based upon the second limb of the abuse test, E that it is not appropriate to order a stay merely because of a sense of outrage at such particular misuse of executive power as may F be demonstrated in the circumstances of the particular case; that F the ultimate question under this limb of abuse is always whether all the circumstances specific to the particular case, including but G G not limited to the misconduct, lead to the conclusion that proceeding with a trial of the accused for the offence charged H offends the court’s sense of justice and propriety or that public H confidence in the criminal justice system would be undermined by proceeding with it or whether, conversely, it is in the interests I of justice that, notwithstanding the misconduct, the accused be I tried for the offence with which he is charged.” J J 39. In the recent case of HKSAR v Lau Chee Ying HCCC 51/2022, K K [2023] 5 HKCFI 1440 at paragraphs 21-26, the relevant legal principles L were summarised as follows: L M M “21. That the court has an inherent jurisdiction to prevent its own process being abused is not in doubt: HKSAR v Lee Ming N Tee (2001) 4 HKCFAR 133. However, the Court of Final Appeal N held in that case that the circumstances in which in the exercise O of a court’s discretion, a stay of proceedings would be justified O are exceptional. This is because, in general, if a prosecution was brought, it was the court’s duty to try the case. Generally P speaking, a prosecutor has as much right as an accused to P demand a verdict on an outstanding indictment, and where either demands a verdict, a judge has no jurisdiction to stand in the way Q Q of it. The court would grant a stay of criminal proceedings in either of the two following circumstances: R R (1) notwithstanding the range of remedial measures available, a fair trial for the accused was impossible and S continuing the prosecution would amount to abuse of S process; and T T (2) in very rare cases, a stay might be granted, although the fairness of the trial is not in question, because the U U V V  - 63 - A A B circumstances involved an abuse of process which so B offend the court’s sense of justice and propriety that the C entire prosecution is tainted as an abuse of process. In C such instances, the court is not exercising the jurisdiction to stay as a means of disciplining the public officials D involved. D E 22. In Warren v Attorney General for Jersey [2012] 1 AC 22, E the Privy Council explained the difference between the two aforesaid categories as follows. In the first category, no question F of balancing interests arose, whereas in the second category F fairness to the accused was not the proper focus of the court’s attention; that, in determining whether to stay criminal G G proceedings in the second category on the ground of executive misconduct, the court would take into account the particular H circumstances of the individual case and, exercising a broad H discretion, would strike a balance between the public interest in ensuring that those accused of serious crimes were prosecuted I and the competing public interest in ensuring that the misconduct I did not undermine public confidence in the criminal justice J system and bring it into disrepute. That said, in Hamilton & Ors J v Post Office Limited, it was held that depending on the nature and degree of the abusive conduct, the same acts and/or K omissions may both render a fair trial impossible (thus, category K 1) and make it an affront to the conscience of the court to L prosecute at all (and thus category 2). L 23. As regards cases which fall in category 1, in the recent M case of HKSAR v Milne John [2022] 25 HKCFAR 257, the Court M of Final Appeal reiterated the highly exceptional nature of a permanent stay of criminal proceedings, saying that “it is only in N N very unusual circumstances that a court will conclude that a fair trial is impossible and thus, as a last resort, abort the trial.” O O 24. As regards category 2, in HKSAR v Ng Chun To Raymond [2013] 5 HKC 390, Stock VP (as he then was) giving P the judgment of the Court of Appeal, stressed that those cases P would be rare since the public interest lays in the guilt or Q innocence of the accused been fairly and openly determined at a Q trial. For this to be displaced, powerful reason must exist for concluding that such a trial, although fair, but nonetheless R constitute an intolerable abuse of the court’s process. The R instances where such an argument have any prospect of success must necessarily be very rare. Citing R v Horseferry Road S S Magistrates Court, ex p Bennett [1994] 1 AC 42, his lordship emphasised that the test for the “affront” limb does not hinge on T the perception of the public, supra, at §87: T U U V V  - 64 - A A B “The key question in the second category of case is, B therefore, not whether, without more, the court is C offended or even outraged by the prosecutorial C misconduct disclosed; and it is not whether the public, possessed of the facts, would be offended or outraged by D the misconduct. It is, rather, whether ‘the court’s sense of D justice and propriety’ or, one should add, public E confidence in the proper administration of justice, is or E would be offended ‘if [the court] is asked to try the accused in the particular circumstances of the case.’” F F 25. As aforesaid, the court in determining a stay application of a case said to fall within category (2) is required to conduct a G G balancing exercise: see also R v Latif [1996] 1 WLR 104. In Warren v A-G for Jersey, the Privy Council summarized some H of the factors that are frequently taken into account by the courts H as follows: I “… Implicitly at least, this determination involves I performing a “balancing” test that takes into account J such factors as the seriousness of any violation of the J Applicant’s (or even a third party’s) rights; whether the police have acted in bad faith or maliciously, or with an K improper motive; whether the misconduct was K committed in circumstances of urgency, emergency or L necessity; the availability or otherwise of a direct L sanction against the person(s) responsible for the misconduct; and the seriousness of the offence with M which the Applicant is charged.” M Thus, the motive or intent of the authorities concerned must be a N N relevant and important consideration for the court: HKSAR v Ko Kit & Anor [2010] 6 HKC 181, at §48. In HKSAR v Lee Ming O Tee and Securities and Futures Commission (Third Party) O (2003) 6 HKCFAR 336, 395 B-C, Sir Anthony Mason NPJ had the following to add: P P “In the absence of a finding of “bad faith”, this standard Q will rarely, if ever be satisfied in a case where a fair trial Q is still possible. Even if there be a finding of “bad faith”, that finding would not necessarily conclude the matter.” R R See also Secretary for the Home Department v CC [2013] 1 WLR 2171, 2200B-2201F. S S 26. Turning to the burden of proof, it is well-established that T it is for the accused to establish the facts which provide the basis T for ordering a stay of proceedings: Tan Soon Gin v Judge Cameron & Anor [1992] 2 HKLR 254 (PC). The standard of U U V V  - 65 - A A B proof is on the balance of probabilities: R v Derby Crown Court, B ex parte Brooks [1985] 80 Cr App R 164. However, the nature C and quality of evidence which would satisfy a court may depend C in part on the facts that are alleged in the support of the application and that when assessing the probabilities the court D will have in mind as a factor, to whatever extent is appropriate D in the particular case, that the more serious the allegation the less E likely it is that the event occurred and, hence, the stronger should E be the evidence before the court concludes that the allegation is established on a balance of probabilities: Re H (Minors) (Sexual F Abuse: Standard of Proof) [1996] AC 563, at 586E-H, applied F in HKSAR v Lee Ming Tee & Securities and Futures Commission (Third Party),ante; see also Criminal Procedure – Trial on G G Indictment by Bruce, at VI [753].” H H Submissions I I 40. Although the grounds for the stay applications of all 3 J J defendants are the same, the reasons in support are slightly different. K K 41. As explained above, D1’s counsel confirmed that he is no L L longer relying on the Prosecution’s previous failure to disclosure irrelevant M parts of the covert audio-recording. M N N 42. D1’s counsel submitted that Li has discussed the evidence of O this case with the Liaison Officer, who in turn related Li’s message to the O OC Case. He argued that Li, the Liaison Officer and the OC Case have P P tried to manipulate the Prosecutor’s conduct of Li’s re-examination. Q Q Further, evidence of the OC Case, Li and the Liaison Officer was R inconsistent and incredible. In those circumstances, a fair trial is no longer R possible. In addition, in the event that the Court finds that a fair trial is still S S possible, counsel submitted that the discussion of Li’s evidence, the alleged T attempt to manipulate Li’s re-examination, Li’s deletion of his call records, T Li’s refusal to provide his mobile telephone passwords to the police and U U V V  - 66 - A A B B the assault of D1 by the ICAC officers amounted to an affront to the Court’s C sense of justice and propriety and the continuation of the trial would C amount to an abuse of process. D D E 43. D3’s counsel also says that a fair trial is impossible. She E submitted that this is because the present trial has been subjected to “such F F monitoring and interference” by the Liaison Officer and Li’s “deliberate G attempt in concord with [the Liaison Officer] to obstruct and mislead the G Court”. Like D1, she submitted that the evidence of the OC Case and the H H Liaison Officer was inconsistent. D3’s counsel pointed out that there was I no reason for any communication between Li and the Liaison Officer, I especially when Li was still in the course of giving evidence. However, the J J call records from Li’s mobile telephones show that there were repeated K telephone conversations between Li and the Liaison Officer, even during K the time when the communication between Li and the Liaison Officer was L L called into question. D3’s counsel pointed out that the Liaison Officer sent M CSD officers to sit in the public gallery and take notes of the proceeding. M She alleged that the Liaison Officer was not only directing the way in N N which the trial should be run by manipulating the line of re-examination, O he was exerting influence over his subordinate’s testimony. She says that O the Liaison Officer was attempting to pervert the course of justice. In P P addition, D3’s counsel invited the Court to consider: Q Q R (1) Ms Salina Siu’s inappropriate communications with the R OC Case when the Prosecutor was reporting the S S message from the Liaison Officer to the Defence; T T U U V V  - 67 - A A B B (2) Li’s deletion of his call reports. Counsel alleged that Li C had only done this because he had been tipped off by C the Liaison Officer; D D E (3) Li’s refusal to provide the passwords to his mobile E telephones; F F G (4) Li’s sick leave and alleged inability to recall anything G after his sick leave; and H H I (5) The assault of D1 during his arrest. I J J 44. Further and in the alternative, D3’s counsel submitted that K even if the Court finds that a fair trial is possible, in the light of the above K mentioned matters, there was an abuse of power which would amount to L L an affront to the Court’s sense of justice and propriety. M M 45. In her oral submissions, D3’s counsel also emphasised that the N N telephone, cigarettes and lighters were found inside a prisoner’s bag. O Although the prisoner’s number on the bag did not belong to D3, there was O no investigation as to the bag’s ownership. During her cross examination P P of the ICAC officers, she suggested that there was a conspiracy to fabricate Q Q a case against D3. She asked the Court to view all the circumstances of the R investigation as an abuse of process. R S S 46. The submission from D4’s counsel is very short as he adopted T the written submission from D3’s counsel. He added that the Court has T “actually witnessed at first hand an attempt to pervert the course of justice”. U U V V  - 68 - A A B B He argued that the OC Case, the Liaison Officer and Li were “brazenly C attempting” to improve on Li’s evidence which amounted to a complete C and actual contempt of court. D4’s counsel also pointed to the presence of D D 2 CSD officers in Court and the events during D1’s arrest as an affront to E the Court’s sense of justice and propriety. D4’s counsel conceded that none E of the above matters had any direct impact on D4. However, he argued that F F the Prosecution’s case against D4 lacked substance and that in all the G circumstances of the case, the continuation of the present trial would be an G abuse of process. H H I 47. In Reply, the Prosecution argued that there was no evidence I to suggest that Li and the Liaison Officer had attempted to pervert the J J course of public justice or that any of the ICAC and/or CSD officers had K acted in bad faith. She submitted that the grounds put forward by the K Defence were isolated incidents which (taken individually or cumulatively) L L do not pose any threat to the possibility of a fair trial. As to the second limb M of the application, the Prosecution submitted that even if the Court finds M the behaviour of some of the witnesses amounted to misconduct, the nature N N and gravity of such misconduct “was not very serious in nature and no O prejudice” was in fact caused to the Defence. O P P Discussion Q Q R Whether a Fair Trial is Possible R S S 48. The parties have filed extensive submissions, setting out the T evidence of the relevant witnesses and commenting on their credibility. T However, this is not the test applicable on an application for a permanent U U V V  - 69 - A A B B stay. As stated above, the test is whether a fair trial is possible in all the C circumstances of the particular case and notwithstanding the remedial C measures which are available to the court. None of the parties have D D addressed the Court on what remedial measures are available and why a E fair trial is or is not possible despite those measures. E F F 49. After the Prosecutor reported the message from the OC Case, G every opportunity was given by the Court to the parties to look into the G surrounding circumstances. Not only did the OC Case, the CSD officers in H H the public gallery, the Liaison Officer and Li testify, their telephones and I the CSD officer’s notes were made available to the parties for inspection. I Li has deleted all his call records. However, those call records have been J J retrieved from the service providers. Li has refused to provide the K passwords of his mobile telephones to the police to retrieve the WhatsApp K call records and messages. However, the parties were given access to the L L telephones of the OC Case and the Liaison Officer. There was no M suggestion that any record of WhatsApp calls from Li were found. If any M messages from Li to the OC Case or the Liaison Officer were deleted, there N N would be a message box which says “This message was deleted”. There O was also no suggestion that any such deleted messages were found. O P P 50. There is no dispute that Li has already told the Court in his Q Q examination-in-chief that the basis of his voice identification was his R comparison of the covert audio recording against D3’s visit audio R recordings and his weekly patrols at TFCI. According to the message from S S the OC Case to the Prosecutor, Li wanted to clarify that the main basis of T voice identification was the comparison of the audio recordings, rather than T the weekly patrols. There was nothing to suggest that he was adding U U V V  - 70 - A A B B anything else to his previous evidence. Further, the OC Case was not C directing the Prosecutor to re-examine Li on the matter. She was only C asking whether it was possible. In fact, even in the absence of any such D D re-examination, Li could have informed the Court that he would like to E clarify part of his evidence. E F F 51. All the criticisms from the Defence against the evidence of the G OC Case, the Liaison Officer and Li only go towards their credibility. G These criticisms will be considered when the Court assesses their evidence H H at the end of the trial. If the Court agrees with those criticisms, their I evidence or part thereof will be rejected. I J J 52. The circumstances and treatment of D1 during his arrest are K all matters which go to the admissibility of his video-recorded cautioned K interview. It has nothing to do with D3 or D4. In any event, the Prosecution L L has already made it clear that they are not seeking to adduce that interview M as evidence. M N N 53. Li’s sick leave did cause an extensive delay in the O proceedings. However, his inability to give evidence during that time was O supported by a medical practitioner. P P Q Q 54. The behaviour of Li, the Liaison Officer, the OC Case and Ms R Salina Siu may well be offensive and inappropriate. However, none of the R matters mentioned by the Defence (taken individually or collectively) S S would render a fair trial impossible. T T U U V V  - 71 - A A B B Whether Continuation of the Trial would be an Abuse of Process C C 55. As was explained in the above authorities, it would be in D D extremely rare cases for the Court to find that the continuation of the trial E would be an abuse of process if a fair trial is possible. E F F 56. The Court’s power to order a stay is not a means of G disciplining the public officials involved. Even when the behaviour G complained of amounted to misconduct, a stay of proceedings is not H H necessarily granted. As was stated in Ng Chun To (supra), the key question I is not whether, without more, the court is offended or even outraged by the I misconduct disclosed. It is also not whether the public, possessed of the J J facts, be offended or outraged by the misconduct. It is rather, whether ‘the K court’s sense of justice and propriety and/or public confidence in the proper K administration of justice, is or would be offended if the court is asked to L L try the accused in the particular circumstances of the case. The Court is M required to perform a balancing exercise. M N N 57. I do not agree that the charges are minor. Misconduct in public O office is a serious offence which is usually visited by an immediate O custodial sentence. Taking the evidence to its highest, it appears that Li P P wanted to repeat the evidence that he has already given in court. This is not Q Q evidence of bad faith, malice or improper motive. At the end of the day, if R the Court finds that they are guilty of misconduct, there are direct sanctions R available elsewhere. S S T T U U V V  - 72 - A A B B 58. Having performed the balancing exercise, the Court is of the C view that continuation of this trial does not constitute an affront to the C Court’s sense of justice or propriety or amount to an abuse of process; nor D D would the continuation of the trial undermine public confidence in the E criminal justice system or bring it into disrepute. E F F 59. In all the circumstances, the applications for a permanent stay G of proceedings are refused. G H H I I J J K ( A N Tse Ching ) K District Judge L L M M N N O O P P Q Q R R S S T T U U V V