One Man's View: 粵首環保前副主席鄭潔賢涉串謀女兒及董事詐騙銀行信用狀

2012年07月12日 11:20
　　據香港明報報導，粵首環保（前稱中富控股）前副主席鄭潔賢涉串謀女兒及董事詐騙銀行信用狀，事件揭發香港特區政府律政司高級助理刑事檢控專員邵家勳涉嫌指示秘書刪除案中部分檔。辯方11日再度申請終止聆訊，透露女秘書承認按邵指令刪除檔，警方指邵或干犯不誠實取用電腦罪。
　　涉案人物邵家勳及其秘書聶秀禎12日將會作供，而案情一直未有披露邵下令刪除檔原因。辯方今年5月22日首次申請終止聆訊時，爆出清盤人與警方及律政司達成“和解協定”，只要辯方付款3800萬元予清盤人，可免卻被起訴。
　　辯方首次申請終止聆訊被拒，昨由英國御用大律師Jonathan Caplan代表提出第二次申請。他指邵於首次申請期間，下令秘書從律政司辦公室的電腦系統下載數份關於本案的檔，並把該些檔刪除，其中一份為2008年9月1日邵與辯方資深大律師郭兆銘單獨會面的紀錄。
　　律政司資訊科技管理組一級分析程式師陳世昌昨證實，該檔於5月25至26日在電腦系統被刪除，其後刑事檢控科及警方有組織罪案及三合會調查科（O記）要求他調查有多少檔被刪除，發現在辯方首次申請終止聆訊期間，共有27份文件被刪。
　　聶秀禎於6月4日接受高級助理刑事檢控專員梁卓然內部調查，她起初稱“有關上司（邵）的所有事情，我都不能回答”，後來承認受上司指示，把涉案檔及便條內容儲存在USB，將之從電腦系統刪除。辯方質疑上述行為破壞刑事檢控制度，付款予清盤人免於起訴，更屬意圖妨礙司法公正。
　　O記總督察陳天柱供稱，上月7日律政司要求警方協助，調查律政司電腦系統有檔被刪，他遂於同日帶隊前往律政司辦公室，檢走邵和聶的電腦，以及邵的兩支USB手指。當時聶情緒激動，不願錄取口供，控方昨指她改變初衷，向警方錄取口供；警方暫未與邵錄取口供，只要求他提供密碼開啟檔。陳又透露有關刪除的檔已完成調查，認為邵可能涉及不誠實取用電腦罪。
　　另一負責該案的高級檢控官陳鳳珊曾出席2008年6月23日及10月16日與辯方會議。根據其筆記，辯方稱清盤人因與鄭的民事訴訟，清盤人需要支付懲罰性訟費，故為“報仇”向警方報案及說謊。辯方又指警方對待鄭潔賢如“恐怖分子”，並以沒有銀行有損失、案件曠日持久為由，要求不作檢控。
【本報訊】粵首環保（前稱中富控股）前副主席鄭潔賢母女等人涉嫌串謀訛騙三千萬元銀行信用狀貸款案，早前揭發律政司高級助理刑事檢控專員邵家勳疑曾刪除與案有關文件。案件昨於區院再提訊，控方透露警方向律政司檢取電腦及調查後，發現五份疑與案有關文件並已交辯方手中。辯方則指對文件被刪的背後動機成疑，認為被告可能得不到公平審訊，要求重開案件永久終止聆訊的申請。法官把案押後至下月十一日處理，屆時邵會再被傳召出庭解釋涉案五名被告依次是鄭潔賢（五十七歲）、其女兒鄭惠明（卅七歲）、葉健敏（四十一歲）、崔敏端（卅八歲）及盧樺（四十七歲），五人共被控十一項串謀詐騙及兩項處理犯罪得益罪。
控方昨在庭上稱，警方早前在檢取得的電腦及ＵＳＢ「手指」中，找到與案有關的文件，並已完成調查，稍後會把調查結果交律政司跟進，而律政司會外覓法律意見。
控方並透露，其中一名與事件有關的「主要證人」並不合作。法官基於案件有新進展，把案押後讓辯方重開終止聆訊申請，並會傳召檢取電腦及檢查電腦資料及主理調查的警員，和疑涉及刪除檔案的官員即邵家勳出庭解釋。
動機未明恐影響審訊
本案原定上月底開審，辯方開審前指首被告曾被中富前附屬公司永輝建築的清盤人威脅支付民事「和解」款項，以換取免刑事檢控，辯方指該「和解會議」有律政司及警方人員出席，因此早前申請永久終止聆訊，當時曾傳召邵家勳出庭並向他取閱警方與律政司之間的通訊文件，邵供稱有關文件已遺失，又指細節全交下屬負責，惟邵的下屬高級檢控官陳鳳珊被召出庭時卻出示到相關文件。因而引發警方介入調查。
案件編號：DCCC 153/2010
Appeal
明報專訊】粵首環保（1191，前稱中富控股）前副主席鄭潔賢等人涉詐騙信用狀案，鄭指律政司高官邵家勳指令下屬刪除與附屬公司清盤人商議和解的文件，以影響審訊公平為由申請終止審訊，被區院拒絕。鄭不服再提司法覆核失敗，

Judicial Review

HCAL127/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 127 OF 2012

_______________

BETWEEN

	CHENG KELLY KIT YIN	1st Applicant
	CHENG WEI MING CARMEN	2nd Applicant
	IP KIN MAN	3rd Applicant
and
	SECRETARY FOR JUSTICE	Putative Respondent

_______________

Before : Hon Poon J in Court

Date of Hearing : 10 December 2012

Date of Judgment : 18 January 2013

______________

J U D G M E N T

______________

A. INTRODUCTION

1. In May 2012, the defendants in DCCC153/2010 applied for a permanent stay of the criminal proceedings. It was refused by the District Judge on 5 June 2012. In July 2012, they re-opened the stay application, which the Judge also refused on 10 September 2012 (“the Decision”).

2. On 8 October 2012, the applicants, who are the 1^st to 3^rd defendants in the criminal proceedings, applied for leave to judicially review the Decision. They sought an order of certiorari quashing the Decision and an order of mandamus either directing the Judge to grant a permanent stay of the prosecution against them or remitting the re‑opened stay application back to the District Court to be heard by another judge.

3. Pursuant to my directions, the putative respondent, the Secretary for Justice, filed a response dated 31 October 2012, opposing the leave application. The applicants filed a reply dated 8 November 2012. I then directed an oral hearing, which took place on 10 December 2012.[1]

4. This is my determination on the leave application.

B. THE CHARGES

5. In the criminal proceedings, the applicants are charged with 10 charges of conspiracy to defraud; the 1^st applicant and the other two defendants (“D4” and “D5”), one charge of conspiracy of defraud; the 2^nd and 3^rd applicants, one charge of money laundering; D4 and D5, another charge of money laundering. The factual circumstances leading to the charges are as follows.

6. At all material times, Wing Fai Construction Company Limited (“Wing Fai”) engaged in the business of, among other things, engineering and construction. It maintained bank accounts with 4 banks (“the Banks”). The 1^st applicant was a director of Wing Fai until her resignation on 22 April 2002. The 2^nd applicant, the 1^st applicant’s daughter, and the 3^rd applicant were shareholders and directors of Famous Capital Enterprises Ltd (“Famous”). The 3^rd applicant was also the account clerk of Wing Fai. D4 and D5 were the shareholders and directors of King Capital Engineering Ltd (“King”) and King’s account clerk and project manager respectively.

7. Between 3 September 2001 and 19 January 2002, Wing Fai made a total of 11 applications to the Banks for letters of credit to be issued in favour of Famous or King, as the case may be, for the purported sales and purchases of asphalt, concrete mix and steel bars when none of the underlying transactions in fact existed. The application documents were all signed by the 1^st applicant. Supporting documents submitted by Famous and King were signed by the 3^rd applicant and D4 respectively. 11 Letters of credit totaling HK$31 million were then issued by the Banks. This constituted the 11 charges of conspiracy to defraud. Further, some of the proceeds of the letters of credit were deposited into the bank account of Famous, which were then applied by the 2^nd and 3^rd applicants as signatories of the account between 12 September 2001 and 1 February 2002. Some other proceeds were deposited into King’s bank account, which were paid by D4 and D5 to another company by way of a cheque dated 30 January 2002 and signed by them. This constituted the two charges of money laundering.

8. On 22 April 2002, Wing Fai was sold to Sino Glister International Investments Limited. A winding up petition was soon presented thereafter. On 6 July 2002, provisional liquidators were appointed. On 9 December 2002, Wing Fai was ordered to be wound up. Liquidators were appointed on 28 February 2003.

9. Following investigations, the liquidators made a report to the Commercial Crime Bureau on 20 January 2004. The 1^st applicant, the 3^rd applicant and D4 were arrested on 14 May 2008; D5, the following day; and the 2^nd applicant, 18 July 2008. They were formally charged on 10 December 2009.

10. The defendants’ principal defence in the criminal proceedings appears to be that there was no economic loss or any risk of such loss to the Banks or Wing Fai.

C. THE STAY APPLICATION

C1. The defendants’ complaints

11. In the first stay application, the defendants relied on two complaints.

12. They first complained that the liquidators had themselves or had through their legal representatives used the criminal proceedings as leverage against the defendants to pressure them into a global settlement of the various civil proceedings that were ongoing between them. They had further failed to disclose some material facts to the police when they filed a complaint against some of the defendants. The police and the DOJ had been influenced by the liquidators’ conduct to the extent that they had abdicated their responsibilities as an independent investigator and prosecutor respectively. The conduct of both the liquidators and prosecutors amounted to an abuse of process.

13. The defendants next complained that there was unjustifiably delay.

C2. The defendant’s evidence

14. In around October 2008, the liquidators initiated discussion about settlement of all the ongoing civil proceedings concerning Wing Fai. At a meeting on 13 October 2008, Mr Nicholas Hill of the liquidators proposed to Mr Camille Jojo, then managing partner of Barlow Lyde and Gilbert representing the directors of Wing Fai, the figure of HK$35 million for a global settlement. Mr Hill further agreed to attend a without prejudice meeting at the DOJ on 16 October 2008 (“the October Meeting”) with the handling counsel, Mr Gavin Shiu, Senior Assistant Director of Public Prosecution, Ms Denise Chan, Senior Public Prosecutor, Mr Clive Crossman, SC and Mr Walker Sham of counsel, representing the 1^st applicant and Mr Jojo.

15. According to the notes of the October Meeting which bore the initial of Mr Crossman and Mr Sham, indicating that it was prepared by them, Mr Crossman said that the best way forward was to achieve a global settlement. That was endorsed by Mr Hill. Mr Crossman then asked for an indication as to how that was going to be received by the DOJ. To this, Mr Shiu retorted, “There is no quid pro quo.” What he meant was crystal clear : any global settlement in all the civil proceedings would have no bearing as to whether criminal prosecution would be brought against the defendants. Further discussion then ensued.

16. In June 2009, Mr Hill called Ms Lily Fenn, senior partner of Lily Fenn and Partners which represented the holding companies of Wing Fai, and sought a global settlement of the civil proceedings for HK$38 million. He said in that event, there would be no worries for the criminal matter as the liquidators would withdraw the complaint.

17. However, no settlement was reached. On 4 September 2009, solicitors representing the liquidators informed the DOJ of the same and indicated that they were ready to assist in the prosecution.

18. The liquidators’ attempt to extract a global settlement in return of dropping the criminal case did not stop. In February and March 2010, a gentleman of the liquidators identified as “A” told Mr Thomas Fyfe, partner of Barlow Lyde and Gilbert, that after settlement for HK$38 million, Mr Hill would stay outside Hong Kong and would not give evidence in the criminal proceedings, which would then lose its impetus.

19. On unjustifiably delay, the defendants’ contended that they had suffered prejudice. A potential defence witness had become unavailable because of his deteriorating mental condition. And bank documents were routinely destroyed after a designated period of time.

C3. Missing files before 4/9/2009

20. In August 2011, the defendants made a written request for further disclosure from the DOJ for all correspondence, documents, notes of meetings and other contact between the liquidators on the one hand and the DOJ and police on the other. The DOJ replied that all the relevant files at the DOJ containing such documents before 4 September 2009 had been misplaced and could no longer be located. The DOJ also supplied a copy of a further letter which the police had been able to retrieve from the correspondence with the liquidators.

C4. The prosecution’s evidence

21. The prosecution called Mr Shiu, Ms Chan and Mr Berlin Ho of CCB to give evidence in opposing the stay application.

22. Ms Chan was the advising counsel. The case was first allocated to her for advice in June 2007. Between then and the time when the defendants were formally charged in December 2009 as the case developed, Ms Chan had given a total of 6 advices, the last of which was in November 2009. She confirmed that the decision in favour of prosecution was made in accordance with the statement of prosecution policy and practice issued by the DOJ.

23. Ms Chan could not recall the details of the October Meeting. Pursuant to Mr Shiu’s instructions, she made some enquiry with the police after the Meeting. Ms Chan kept some rough notes of the Meeting, which was placed in a file. That file, together with other files, was handed over to another counsel of the Prosecutions Division for further handling in March 2010.

24. Mr Shiu was the supervising counsel. He approved of Ms Chan’s advices and endorsed her decision to prosecute. Referring to the October Meeting, he recalled that Mr Crossman was trying to convince Ms Chan and him that it was not an appropriate case to prosecute. But they just heard the representations without making any commitment. Mr Shiu said he was mindful of the role that the liquidators might be playing or seeking to play in the criminal prosecution. He questioned their integrity and asked the police for information.

25. I have not been referred to Mr Berlin Ho’s evidence, which presumably has no bearing on the present leave application.

26. After the close of the evidence, and immediately before oral submissions were made, the prosecution produced some further document which Ms Chan had only just found (“the Further Documents”). It would appear that Ms Chan was upset by the evidence of Mr Shiu that it was she who arranged the October Meeting. She then checked her computer and found the Further Documents. The Further Documents were immediately made available to the defence by the DOJ’s letter dated 31 May 2012. The Further Documents were (1) emails between Ms Shiu and Ms Chan (2) emails between Ms Rebecca Nip, Mr Shiu’s secretary, and Ms Chan; and (3) a minutes of meeting prepared by Mr Shiu dated 2 September 2008 (“the Minutes”) of a meeting that he attended on 1 September 2008 with Mr Crossman, Mr Sham and Mr Felix Ng, pupil to Mr Crossman (“the September Meeting”).

27. According to the Further Documents, Mr Shiu had in fact attended two earlier meetings with Mr Crossman about this case. The first meeting was held in June 2008, the second, the September Meeting. The Minutes recorded that at the September Meeting, the defence suspected that not all documents had been revealed by the liquidators and that the 1^st applicant had been pressed to settle the civil proceedings which would help the criminal case.

28. The fact that Ms Chan had retrieved the Further Documents was placed before the District Judge by way of admitted facts with the Further Documents enclosed. Neither the prosecution nor the defendants sought to adduce any further oral evidence arising from the Further Documents before the court. Closing submissions were made on 1 June 2012. The Judge then adjourned the matter for ruling.

C5. The Judge’s ruling

29. On 5 June 2012, the Judge delivered his ruling.

30. The Judge rejected the argument that the DOJ had abdicated its duties. He accepted the evidence of Mr Shiu and Ms Chan. In particular, he found that Ms Chan had acted professionally and without any regard to anything the liquidators might have to say on the criminal proceedings and that she made her decision on prosecution based on the evidence and the evidence alone. He concluded that whatever the motives and conduct of the liquidators or their legal representatives, the police and in particular the DOJ had proved that they had maintained their independence, impartiality and objectivity throughout. He said :

“The prosecution of the defendants does not amount to an abuse of process. The integrity of the criminal justice system [has] not been compromised. On the contrary, if the motives and conduct of the liquidators are as being alleged by the defendants, it has been demonstrated that the system is working perfectly, with the criminal investigation and prosecution being handled impartially by the Police and the [DOJ].”

31. The Judge next found that there was no unjustifiably delay.

32. Accordingly, he dismissed the stay application.

D. THE RE-OPENED STAY APPLICATION

33. That is, however, not the end of the matter.

D1. Further development leading to the re-opened stay application

34. It transpired that unbeknown to the prosecution and the defence, on 25 May 2012 and before he gave evidence on the stay application on 29 May 2012, Mr Shiu directed Ms Nip to download various documents from the DOJ document management system onto his two thumb drives and delete them the same from the system. Ms Nip was interviewed by DOJ officers on 4 June 2012. Eventually, the DOJ reported the matter to the police. On 7 June 2012, the police entered the DOJ’s office to seize the office computers of Mr Shiu and Ms Nip and the thumb drives. The police’s action was widely reported in the media.

35. The above events prompted the defendants to apply to re‑open the stay application before the Judge.

D2. Further evidence

36. Several points emerged from the further evidence heard by the Judge on the re-opened stay application on 11 and 12 July 2012.

37. First, in her testimony, Ms Nip described how on 25 May 2012 Mr Shiu asked her to download and delete the documents. She added that he had asked her to do something like this occasionally before but she could not remember the details of those occasions and what the documents were.

38. Second, under cross-examination, Mr Shiu was pressed as to why he asked Ms Nip to delete the documents on 25 May 2012. He had this to say :

“A. Well, my concern was that in fact -- was that I wanted to be in control of them, in possession of them and that when my colleagues wanted them I would be -- know when they got them in what context and I’d also be able to explain to them the context of the drafts because, as I have just been saying to you, they are drafts. I am not 100 per cent certain whether are the final version that went on the record. The record is the hard copy which has been lost and I was just a little bit concerned. In fact, if anything, I was a bit concerned that my secretary would get dragged into some potential conflict of my colleagues and that’s one of the concerns. That was one of my concerns.

Q. So you were really trying to protect her, in effect.

A. That’s one of the reasons, yes, and it was only a momentary decision. It wasn’t one that I sort of sat down and thought about for five or ten minutes. It was just one of those momentary things. And obviously, now, I regret that I did that and probably would have been better ways of doing it but -- and I do apologise for that but it was a momentary thought but it seemed like a good idea at the time, one of those sort of things.”

39. Third, the police carried out investigation into Mr Shiu’s and Ms Nip’s office computers and Mr Shiu’s two thumb drives. According to the statement of Chief Inspector Chan Tin-chu dated 9 July 2012, the police scanned the documents stored in the devices by using a set of key words with a view to identifying any document relevant to the criminal case. 91 documents were identified and sent to the DOJ for determining their relevancy.

40. I pause to note that when CIP Chan said 91 documents were identified to be relevant, he must have meant that they were potentially relevant because they matched the key words used in the scanning test. Whether any of the 91 documents was actually relevant must be determined by the DOJ. That must be the reason why they were sent over to the DOJ for actual relevancy to be determined.

41. Fourth, the DOJ performed their own investigation. Mr Chan Sai-cheong, Rick, technical staff, examined the backup drives of the Department and confirmed that :

(a) between 3October 2010 and 20 May 2012 (“Phase 1”), 356 documents were deleted;

(b) between 20and 25May 2012 (“Phase 2”), 27 documents were deleted. These 27 documents do not include the Minutes, which were deleted from the central system of the DOJ sometime between 24and 25 May 2012. The Minutes were specifically restored; and

42. All the deleted documents were restored (‘the Restored Documents’). Three officers of the Prosecutions Division, namely Ms Louisa Lai, DDPP, Mr David Leung, SADPP and Ms Sabra Lo, PP, examined the Restored Documents. Their evidence was presented to the court by way of witness statements. It is their undisputed evidence that the documents deleted in Phase 1 and Phase 3 were not relevant to the criminal proceedings. For the 27 documents deleted in Phase 2, 7 documents were identified to be or likely to have been created by Mr Shiu or Ms Nip. Those 7 documents were annexed to the witness statement of Ms Louisa Lai received as evidence in the re-opened stay application. The documents did not include the Minutes.

43. Fifth, Ms Chan re-iterated in her oral testimony that when she made the decision to prosecute, she was not influenced in any way by anything said or communicated to her by the liquidators and that she made the decision based on the evidence available to her only.

D3. The defendants’ contentions

44. The defendants’ contentions were based on Mr Shiu’s conduct.

45. First, they argued that Ms Nip had previously, pursuant to Mr Shiu’s instruction, deleted other documents from the computer server of the DOJ. That being the case, it is impossible for the court to be sure if the documents that she deleted on 25 May 2012 contained any information relevant to the present case. No fair trial was possible.

46. Second, they argued that Mr Shiu’s conduct in causing Ms Nip to delete the documents from the computer server and his failure to inform the prosecution, the defence or the court of the same had prejudiced the integrity of the criminal proceedings to such an extent that it should be stayed permanently even if a fair trial was possible.

D4. The Decision

47. The Judge gave the Decision on 10 September 2012.

48. Since the applicants are challenging the reasoning of the Judge, I will simply quote his ruling so that his reasoning can be fully and properly understood. The Judge first disposed of the argument that there could not be a fair trial thus:

“The first limb: fair trial

The main thrust of this part of the defendants argument is in relation to the instruction given by Mr Shiu to Ms Nip to locate and remove certain documents from the computer server. It must be noted that the removal was from the server onto a thumb drive, it was not an order to destroy the documents.

According to the evidence adduced during the re-opened stay application, all the documents removed from the relevant computers were restored. According to David Leung and Sabra Lo’s witness statements, none of the restored documents are relevant to the present case. This was not disputed by the defendants.

It is the defendants’ allegation that since Shiu did not tell the court about the deletion when he first gave evidence in the stay application, it is not possible to now know whether he is telling the truth when he said that there are no other documents relating to the case that had been deleted or removed.

The defendants argue that this assertion is supported by the evidence of Nip when she said that she had previously occasionally deleted documents as instructed by Shiu. They therefore ask the court to draw the inference that there must have been other documents in relation to this case which had been deleted and that Mr Shiu had not told the court about. They say that without those missing documents, there can be no fair trial.

I find that what Ms Nip meant when she gave that answer in examination-in-chief was to show that what she was asked to do on 25^th May was nothing out of the ordinary, that she had done search and delete operations for Mr Shiu before. There is insufficient evidence to support the drawing of an inference that since Nip had done other deletions before, there must be documents relating to this case that had gone missing.

Bad faith and motive of Mr Shiu

In relation to whether Shiu had caused the deletion of the documents in bad faith and his motive behind, it must first of all be noted that Shiu has been with the Department of Justice for a long time and is a very experienced government counsel. He must have known about the backup system of the department. If his intention was to destroy all traces of the documents, he should have done it himself and should have tried to get to the backup files as well. Instead he chose to ask the person who would most likely to be investigated for any deletion of files to do it for him.

Furthermore, the instructions for Ms Nip to delete was given on 25^th May, which was just days after the 3 strongly worded memos from David Leung, Wesley Wong and Kevin Zervos. If the deletion by Mr Shiu was to hide the documents, why would he ask Ms Nip to do so at the particular time? He had already been alerted that his superiors were ‘on to him’ as it was, and if he was to make any stealth deletions, he ought to have done so himself.

The proposition that Mr Shiu was not trying to hide anything is in turn supported by what was in fact restored from the computers. As mentioned above, the evidence of David Leung and Sabra Lo in relation to the restored documents is that none were found to be relevant to the present case. There was nothing for Shiu to hide.

The 1^st September 2008 meeting notes

As for Shiu’s failure to mention about the 1^st September meeting and any records of the meeting, it must first of all be noted that the meeting was supposed to have been held between Gavin Shiu and the defendants’ (or some of the defendants’) legal representatives. Mr Shiu could not have been no naive as to have though that the deletion of the notes on his own computer would hide the fact that such a meeting had taken place. As least not from the defendants.

Furthermore, the 1^st September notes were recovered by Ms Denise Chan from her computer. There is no evidence of any attempt on Mr Shiu’s part to instruct Ms Chan to look through her computer’s archive to delete any relevant documents, nor any attempt on Mr Shiu’s part to do so himself. If Mr Shiu was acting as a rogue prosecutor, as the defendants are accusing him to be, he ought to have done much more to cover his tracks, if those tracks required covering.

I find that I can accept Mr Shiu’s explanation given in court of why he instructed Ms Nip to locate and delete the files from the servers. It may not have been the wisest move on his part but I do not find that there were any sinister motives behind the deletions. I find that there is not enough evidence to prove that Mr Shiu had acted in bad faith in the deletion of the documents and his failure to disclose to the court such deletions.

I note the discrepancies between Mr Shiu and Ms Nip’s evidence as to how Shiu instructed Nip in relation to the location and deletion of the documents. For the reasons given above, whether it was Shiu or Nip giving the correct version in court, it would not affect my finding on the lack of bad faith on Mr Shiu’s part. There is no point at all for Mr Shiu to lie about whether he was handed the 1^st September meeting notes or note by Ms Nip. He had already admitted to instructing Nip to delete the documents.

Furthermore, as pointed out above, the meeting was supposed to have been with the legal representatives of the defendants, unilateral deletion of the records of that or any meeting on his part would do nothing to conceal the meeting from anyone, especially not the defendants.

Conclusions on the first limb

I find that none of what had transpired between my last ruling on the stay application and the closing of the re-opened stay application in terms of evidence would cause me to change my ruling as to whether there can be a fair trial.

The pre 4^th September 2009 missing files remain missing, the only difference is that now the defendants are saying that given the conduct of Gavin Shiu in his instructions to Nip to delete documents in May 2012, it is likely that Gavin Shiu was the person who had caused the disappearance of those missing files as well.

I find that no such inference can be drawn.

I find that Denise Chan was still the key person who made the recommendation of whether to prosecute the defendants and on what charges. There is nothing in the re-opened application to cause me to find differently as to her professional integrity and independence. Gavin Shiu merely accepted Ms Chan’s recommendation in the process.

I find that, even when taking into consideration the new evidence adduced in the re-opened stay application, the defendants have failed to prove on the balance of probabilities that the defendants will not be able to have a fair trial. As such, the defendants’ application on the basis of not being able to have a fair trial fails.”

49. The Judge then addressed the second complaint that it was an affront to the public conscience as follows :

“The second limb : affront to the public conscience

Since I have found that this is not a case where the defendants will not be able to have a fair trial, I move on to consider the so called second limb of the defendants’ application, applying the principle stated by Lord Steyn in R v Latif [1996] 1 WLR 104 at 112 G-H, as referred to in the case of HKSAR v Lee Ming Tee, CACC 1/2003 at paragraph 182:

‘In this case the issue is whether, despite the fact that a fair trial was possible, the judge ought to have stayed the criminal proceedings on broader considerations of the integrity of the criminal justice system. The law is settled. Weighing countervailing considerations of policy and justice, it is for the judge in the exercise of his discretion to decide whether there has been an abuse of process, which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed : Reg v Horseferry Road Magistrates’ Court, Ex parte Bennett [1994] 1 AC 42.’

It is generally recognised that only in exceptional circumstances will a stay be granted when a fair trial is possible. An indication of what this means is conveyed by L’Heureux-Dubé J’s observations in R v O’Connor at 277b-c :

“… a stay of proceedings is only appropriate ‘in the clearest of cases’, where the prejudice to the accused’s right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued.”

In the absence of a finding of “bad faith”, this standard will rarely, if ever be satisfied in a case where a fair trial is still possible. Even if there be a finding of “bad faith”, that finding would not necessarily conclude the matter’

It is not disputed by either party that at the end of the day the court has to conduct a balancing act in the exercise of its discretion under the second limb.

The big picture is this. The liquidators reported certain suspicious activities concerning a case that they were dealing with to the authorities. There was nothing improper in that reporting and the liquidators were in fact legally bound to do so once they found the irregularities. The reporting was done with the leave of the court.

The investigating authorities decided to wait while the parties conducted negotiations as well as engaged in numerous and lengthy legal battles.

In the mean time, personnel handling the case in the Department of Justice had changed. Certain documents had been misplaced. We do not know what those documents are and who had misplaced them.

Ms Denise Chan of the Department of Justice was the last person to be tasked with coming up with a legal opinion as to whether there was enough material to bring a prosecution and if so who to charge and with what, based on the information provided by the liquidators and the investigation by the Police.

There would appear to have been 2 meetings in June and September 2008 been Mr Gavin Shiu and legal representatives of some of the defendants. Mr Shiu cannot recall whether those meetings had taken place or their contents. There is not other evidence to suggest the contents of those meetings except the 1^st September notes mentioned above. It would appear that Mr Clive Grossman SC would have been present at both those meetings.

There was however one meeting between the Department of Justice and some of the defendants’ legal representatives that full minutes are available. This was the meeting on 16 October 2008. The minutes show that the Department of Justice, through Mr Gavin Shiu, had tersely indicated that there would be ‘no quid pro quo’ from the department should the parties choose to settle.

Documentary evidence show that after the meeting, Mr Shiu had inquired with the Police about the integrity of the liquidators. Ms Chan was also alive to that issue. According to Ms Chan, she made the decision to prosecute independently and without being influenced by any of the parties.

Long after the defendants have been arrested and charges laid, Mr Shiu in May 2012, for innocent motives (as I have found) instructed his secretary to seek out some files and copy them to a thumb drive and then delete them from the office computer. On the face of it, this is suspicious action, but if one looks at the contents of the documents deleted and restored as well as the circumstances surrounding the deletion, there was nothing much in relation to the deletions that it relevant to the present case.

Now the defendants are saying this deletion, this failure to inform the court of the deletion and the failure to disclose to the defendants about the deletion is so serious an affront to the public conscience that all proceedings against the defendants have to be stopped.

I find that taking all circumstances into consideration, a proper balancing exercise would lead one to conclude that no such stay should be granted. By my reasoning above, I find that the conduct of Mr Shiu was not done with bad faith. I further find that his action in instructing Ms Nip to make the deletions and his failure to tell the court about the instructions is not so serious that ‘irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued.’

As I said before, Shiu might not have engaged in the wisest course of action, but it does not appear that he did so to hide anything. What he had done, bearing in mind all the circumstances of the case, did not cause any damage to the integrity of the criminal justice system.”

50. The Judge accordingly ruled that his earlier refusal to stay the criminal proceedings do stand.

E. THE GROUNDS FOR JUDICIAL REVIEW

51. In the Form 86, the applicants raised the following grounds for the intended judicial review :

(1) That this application gives rise to exceptional circumstances and leave should be granted;

(2) That the decision of the Judge was unreasonable and irrational and should not have been reached by any reasonable tribunal having regard to have evidence and relevant legal principles;

(3) That on any objective analysis of the evidence, the conclusions reached the Judge as to the motives and conduct of Mr Shiu in ordering his secretary to delete documentation which was relevant to live issues before a court from the DOJ server and to place it on his personal thumb drive without disclosing the same to the Department or to the parties in the stay application or to the court in his witness statement or in his oral evidence, and without complying with a personal written direction to him from the Director of Public Prosecutions to provide a detailed written explanation of his involvement in the issues raised by the stay application, defy logic and the acceptable and expected standards of a prosecutor;

(4) That any reasonable tribunal should have found on the evidence that Mr Shiu acted in bad faith and that his conduct and the wider ramifications of his lack of candour undermined the prosecution’s fundamental duty of disclosure and the integrity of the proceedings such that a permanent stay should have been ordered;

(5) That this application has additionally a wider importance to the system of criminal justice in Hong Kong, to the standards which the court expect and require of prosecutors, and to the public perception as to whether those standards are in fact maintained.

F. DISCUSSION

F1. The law

52. To obtain leave for applying for judicial review, an applicant must satisfy the arguablility test as propounded by Li CJ in Po Fun Chan v Winnie Cheung :[2]

“Under this test, arguability must mean reasonable arugability. A claim for relief which is not reasonably arguable could not be regarded as arguable. A reasonable arguable case is one which enjoys realistic prospects of success. …”

53. Whether there is a reasonable case must depend on the actual context of the case. Here, in satisfying the arguability test, the applicants must show a reasonably arguable case which enjoys a realistic prospect of success based on the well-established principles governing the permanent stay of criminal proceedings. The parties have cited a number of cases on the principles on stay. For present purposes, I think I only need to refer to the judgment of Ribeiro PJ in HKSAR v Lee Ming Tee & another :[3]

“The trial of course proceeds in the vast majority of cases. However, the court also unquestionably has jurisdiction to stay criminal proceedings brought by the Secretary in the exceptional cases where such a course is justified. That jurisdiction rests on the court’s inherent power to prevent abuse of its own process: Connelly v DPP (1964) AC 1254 at 1354, 1361.

In most such cases, the court only grants the stay because, notwithstanding the range of remedial measures available at the trial, a fair trial for the accused is found to be impossible and continuing the prosecution would amount to an abuse of process. …

A second line of stay cases… proceeds on a different basis. These are the rare cases where the court is prepared to grant a permanent stay even though a fair trial undoubtedly remains possible. The leading authority is the decision of the House of Lords in R v Horseferry Road Magistrates’ Court, Ex parte Bennett [1994] 1 AC 42, where, although the fairness of the trial was not in question, the court granted a stay because the circumstances involved an abuse of power which so offended the court’s sense of justice and propriety that the entire prosecution was tainted as an abuse of process.

While the jurisdiction on this dual basis clearly exists, it is only most sparingly exercised: Tan v Cameron [1992] 2 AC 205 at 221; Jago v The District Court of New South Wales (1989) 168 CLR 23 at 31; Ex parte Bennett [1994] 1 AC 42 at 74.

There are cogent reasons why in principle and in practice such stays are highly exceptional.

In the first place, it is only in very unusual circumstances that a court can properly be satisfied that a fair trial is “impossible”. The “fairness” achievable is judged in practical and not absolute terms. …

Secondly, in cases where a fair trial remains possible even though official misconduct may be involved in the bringing of the prosecution, the court does not exercise the jurisdiction to stay proceedings as a means of disciplining the police or prosecuting authorities. …

The public interest lies in the guilt or innocence of the accused being fairly and openly determined at trial. For this to be displaced, powerful reasons must exist for concluding that such a trial, although fair, would nonetheless constitute an intolerable abuse of the court’s process. The instances where such an argument has any prospects of success must necessarily be very rare.

Thirdly, in cases where the ground on which a stay is sought concerns alleged unfairness in the use of particular classes or items of evidence, the courts, for procedural reasons, are extremely reluctant to determine the evidential questions on a stay application. This is because the fairness of using the evidence may be incapable of evaluation prior to the trial itself. 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 the question may best be dealt with as a question of admissibility to be determined by the trial judge and possibly made subject to his residual discretion to exclude the same. …”

F2. Two main issues

54. The grounds on which judicial review is sought and the parties’ submissions on whether leave should be given boil down to two main issues :

(1) Whether it is reasonably arguable that because of Mr Shiu’s conduct complained of, no fair trial is possible?

(2) Whether it is reasonably arguable that Mr Shiu’s conduct complained of amounts to an affront to public conscience so that even if a fair trial is possible the criminal proceedings should be stayed?

55. Once these issues are resolved, whether the grounds stated in the Form 86 satisfy the arguability test will become apparent.

F3. The 1^st Issue

56. The applicants argued that Mr Shiu did not tell the court about the deletion of documents when he first gave evidence in the stay application in May 2012, it was not possible to now know if he was telling the truth when he said that there were no other documents relating to the case that had been deleted or removed. According to Ms Nip, she had previously, as directed by Mr Shiu, deleted documents from the central computer system in the past, it was reasonable to infer that there must have been other documents deleted might have contained information relevant to the case; and that Mr Shiu was responsible for the missing of the case files prior to 4 September 2009.

57. In my view, the applicant’s argument is simply untenable. As noted, the undisputed evidence before the Judge is that all the documents deleted from the DOJ’s central system since 3 October 2010, including those deleted by Ms Nip on 25 May 2012, had been recovered. Three officers of the Prosecution Division had examined all the Restored Documents with care. All were found to be irrelevant to the criminal proceedings except those which were annexed to Ms Lai’s witness statement. There is no basis to suggest that some other documents which were relevant to the criminal proceedings were or might have been deleted from the DOJ’s central system, whether by Mr Nip or Ms Nip since 3 October 2010. Further, it was not even suggested to either Ms Nip or Mr Shiu that before 3 October 2010, Ms Nip had or might have, pursuant to Mr Shiu’s instruction, deleted documents that were relevant to the criminal case; or that Mr Shiu was responsible for the missing of the case files before 4 September 2009. There is simply no basis to ask the court to draw such inferences any way. The gap between the conduct of Mr Shiu complained of and the inferences the applicants ask the court to draw, even on a reasonably arguable basis, is too wide to be bridged. Their argument is based on sheer speculation and no more.

58. I find that it is not reasonably arguable that the Applicants would be deprived of a fair trial because of Mr Shiu’s conduct complained of.

F4. The 2^nd Issue

59. The applicants argued that even if a fair trial is possible, Mr Shiu was motivated by bad faith and bad motive. His conduct was an affront to public conscience and had broken the court’s confidence in the prosecution. The integrity of the criminal proceedings has been undermined.

60. In my view, Mr Shiu’s conduct in instructing Ms Nip to delete the documents in May 2012 was rather unusual. His explanation may not be entirely satisfactory. But the effect of his conduct must be assessed and determined objectively in the overall circumstances of the case. Having evaluated the evidence carefully, I find myself in complete agreement with the reasoning and conclusion reached by the Judge on this matter. I would only add a few words.

61. First, when the overall circumstances are viewed objectively, there is no basis, even on a reasonably arguable basis, to attribute any bad faith or bad motive to Mr Shiu as alleged.

62. Second, much has been said about the fact the documents deleted by Ms Nip on 25 May 2012 contained the Minutes. But the Minutes had already been provided to the defendants before closing submissions were made on the 1^st stay application. The defendants did not see the need to recall either Mr Shiu or Ms Chan. I fail to see how they can place any reliance on the late disclosure of the Minutes now. Further, at the September Meeting, the main point made by Mr Crossman acting for the 1^st applicant concerned the liquidators’ conduct. But it is beyond dispute that at the subsequent meeting on 16 October 2012, Mr Shiu had made the prosecution’s position very clear. Any global settlement pursued by the liquidators would have no bearing as to whether criminal prosecution would be brought against the defendants. Ms Chan’s evidence, rightly accepted by the Judge, is that the decision for prosecute was based on evidence available to her alone and that she was in no way influenced by the liquidator’s conduct.

63. Third, I fail to see how Mr Shiu’s instruction to Ms Nip in May 2012 could have affected the integrity of the decision to prosecute made in December 2009, which as Ms Chan re-iterated, was based on evidence made available to her only.

64. Fourth, I fail to see how Mr Shiu’s instruction to Ms Nip in May 2012 could have affected the integrity of the criminal proceedings conducted before the Judge as alleged.

65. The applicants placed heavy reliance on Dairy Farm Company Ltd v The Director of Food and Environmental Hygiene[4]. In that case, the prosecution with held evidence which would have assisted in proving the defendant’s innocence. No proper explanation was offered. The Court of Appeal found that the prosecution was presented with bad faith [5]; and that the conduct of the prosecution have been such that the integrity of the system of justice would be ignored if the prosecution were permitted to continue [6].

66. I do not think the applicants can derive any assistance from Dairy Farm for the simple reason that the facts in the present case are so materially different that any suggestion that the prosecution was trying to hide relevant documents from the defence is doomed to fail.

67. Finally, I do not think there are exceptional circumtances in the present case that warrant the exercise of this court’s supervisory jurisdiction to interfere with the criminal proceedings.

F5. Arguability of the grounds

68. It follows that all the grounds relied on in Form 86 are not reasonably arguable.

G. CONCLUSION

69. For the above reasons, I find that the applicants have failed to satisfy the arguability test. Leave to mount the judicial review is accordingly refused.

70. Costs should follow the event. I make an order nisi that the applicants do pay the Secretary for Justice the costs of the leave application with a certificate for two counsel, to be taxed if not agreed.

	(J Poon) Judge of the Court of First Instance
	High Court

Mr Jonathan Caplan QC leading Mr Cheng Huan SC and Mr Bernard Cheng, instructed by Haldanes, for the 1^st, 2^nd and 3^rd applicants

Mr Daniel Marash SC leading Mr Ira Liu SSP, of the Department of Justice, for the putative respondent

[1] After the hearing, I directed the parties to render further assistance in writing on an evidential point, which they did on 4 January 2013.

[2] (2007) 10 HKCFAR 676, at para 25.

[3] (2001) 4 HKCFAR 133, at pp 148H – 151J.

[4] [2005] 3 HKC 1.

[5] Per Roger VP at para 27.

[6] Per Roger VP at para 34.

上訴昨亦被駁回。上訴庭指出，邵刪除文件只為與高層「鬥氣」，披露邵曾因被上司要求索取文件而大動肝火。

上訴庭副庭長司徒敬昨頒下判辭，詳列事件來龍去脈，透露去年5月底律政司高層「駁火」過程。

本案上訴人鄭潔賢、其女兒鄭惠明及公司董事葉健敏，與另外兩人去年於區院受審。案件去年5月開審前，他們首次申請終止聆訊，指公司臨時清盤人曾與律政司開會提出和解，涉不當干預刑事程序，但被主審法官游德康否決。

邵家勳黃惠沖「駁火」薛偉成「平亂」

高級助理刑事檢控專員邵家勳曾出席2008年10月的其中一次上述所指的會議。至去年5月9日，邵收到鄭等人的申請終止聆訊陳辭後，隨即休假。同月21日，副刑事檢控專員黃惠沖發出4頁紙通知，要求邵於24日中午前，交代關於該和解會議的詳細書面解釋、資料和文件，並要求邵解釋召開該會議的過程和目的，以及有否獲得上司批准等。

邵於23日復工得悉該通知，向黃還擊：「你以什麼身分寫通知給我？你是指示案件的律師？負責審訊的大狀？你是我僱主的代表？何以你沒跟我談論這件事？」判辭又形容邵顯然不悅，「煩惱，甚至憤怒」。由於下屬之間「駁火」，時任刑事檢控專員薛偉成即往「平亂」，於24日向邵發出緊急通知，直言邵「不欲與處理案件的檢控團隊合作」，正式要求邵回應黃發出的通知。

上訴庭：刪文件非圖對上訴人不利

邵及後承認，曾命令下屬把一些涉案草稿文件傳到記憶體後，刪除文件，鄭等人遂提出第二度終止審訊申請。邵曾解釋此舉讓他「主宰」文件，若有同事要求文件，他便可以解釋文件的內容，協助同事。不過上訴庭認為，邵刪除文件皆因與上司內訌，並非意圖對上訴人不利。上訴庭認為游官否決第二次終止申請，決定正確，遂裁定本上訴失敗。

【案件編號：CACV20/13】

Appeal Judicial Review decision

CACV 20/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 20 OF 2013

(ON APPEAL FROM HCAL NO. 127 OF 2012)

________________________

BETWEEN

	CHENG KELLY KIT YIN	1^st Applicant
	CHENG WEI MING CARMAN	2^nd Applicant
	IP KIN MAN	3^rd Applicant
	and
	SECRETARY FOR JUSTICE	Putative Respondent

________________________

Before: Hon Stock Ag. CJHC, Lunn JA and G. Lam J in Court

Date of Hearing: 3 September 2013

Date of Handing Down Judgment: 25 September 2013

________________________

J U D G M E N T

________________________

Hon Stock Ag. CJHC (giving the judgment of the Court):

Introduction

1. At the centre of this case is the fact that a senior public prosecutor caused to be deleted from the document management system of the Department of Justice a number of documents said to have been relevant to a criminal prosecution. The defendants contend that that act deprived them of a fair trial and compromised the integrity of the criminal justice system. So they applied for a stay of the proceedings. Their application failed. So they sought leave to launch judicial review proceedings. Leave was refused; and this is the appeal from that refusal.

2. The subject matter is a proposed trial in the District Court of three defendants who face 10 charges of conspiracy to defraud various banks in Hong Kong by applications for the issue of letters of credit and falsification of documents required for the negotiation of such documentary credits and of causing payments to be made to third parties pursuant to such negotiation when, in each case, so it is alleged, there was no underlying commercial transaction relating to the letter of credit. The 11^th charge lies against the first applicant and against two others with whom we are not concerned and is a like charge of conspiracy to defraud. There is a 12^th charge against the second and third applicants of dealing with property known or believed to represent the proceeds of an indictable offence.

3. The trial judge was Judge Douglas Yau. In May 2012, the applicants asked him to stay the criminal proceedings but in a ruling dated 5 June 2012, that application was rejected. Because of facts which thereafter emerged – the deletion of documents – the application for a stay was re-opened in July 2012, but that second application was rejected in a ruling dated 10 September 2012.

4. Instead of utilising the criminal appeal process which is available in the event of a conviction, the applicants decided to challenge the second stay refusal by route of an application for leave to apply for judicial review.

5. The notice of application for leave to apply for judicial review is dated 8 October 2012. The relief sought is an order of certiorari to bring up and quash that decision and an order of mandamus directing the District Court to grant a permanent stay or an order to remit the stay application to the District Court for a new hearing before a different judge.

6. The application for leave was heard on notice and by his judgment dated 18 January 2013, Jeremy Poon J refused to grant leave. His refusal was based not merely on his finding that this was a case which did not warrant a collateral application but on the merits themselves, for he decided that the grounds relied upon in the notice of application were not reasonably arguable.

7. The notice of appeal dated 1 February 2013 seeks an order to set aside that judgment and an order that leave be granted. However, given that the hearing before Poon J was on notice and that his judgment followed full inter-partes argument on the merits, Mr Caplan QC, for the applicants (now the appellants), sensibly accepts that in the event of success upon this appeal, there would be scant practical purpose in merely granting leave to enable argument at first instance on the application for judicial review. Accordingly, we shall treat the hearing of the application for leave as having been a hearing of an application for judicial review and the decision of Poon J as a decision to dismiss that application.

The importance of context

8. We regret to say that the presentation of the papers was less than helpful; not all relevant documents were contained in the files compiled for the hearing, so key additional documents were presented piecemeal during the hearing, and we ended up with a sizeable bundle of documents in disparate clips of paper and in no chronological order. This has made our task difficult, for the significance of the act of deletion of some documents in May 2012 which lies at the heart of this case can only properly be assessed by appreciating the detailed chronological context in which that conduct occurred.

9. On the face of it, the deletion by a prosecutor of case relevant documents from a central repository whilst the case is in progress and whilst relevant documents are sought is a most serious matter and the mind will immediately tend to the conclusion that the deletion was intended to withhold documents that may be of assistance to the defence. In this case, the District Court judge held that the prosecutor did not act in bad faith and it is that finding which is said by Mr Caplan to be perverse.

10. Yet, face value assumptions must always be conscientiously tested against full context. There are few more salutary judicial reminders than that of Megarry J in John v Rees that :

“As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; fixed and unalterable determinations that, by discussion, suffered a change.”[1]

11. The reminder is apt to this case because, on the one hand, it is asserted that the deletion of the information must be assumed to have been for the purpose or, at least with the effect of, depriving the defence of material helpful to its case whereas, on the other hand, the respondent, although decrying the deletion of the information, asserts that it was for an altogether different and personally idiosyncratic purpose with no intent to deprive the defendants of anything at all. It seems that the judge came to the latter conclusion and in order to assess whether he fundamentally erred in so doing, the detail is vital.

The alleged criminal conduct

12. We can conveniently take the broad background of the case from the helpful summary provided by Poon J:

“6. At all material times, Wing Fai Construction Company Limited (“Wing Fai”) engaged in the business of, among other things, engineering and construction. It maintained bank accounts with 4 banks (“the Banks”). The 1^st applicant was a director of Wing Fai until her resignation on 22 April 2002. The 2^nd applicant, the 1^st applicant’s daughter, and the 3^rd applicant were shareholders and directors of Famous Capital Enterprises Ltd (“Famous”). The 3^rd applicant was also the account clerk of Wing Fai. D4 and D5 were the shareholders and directors of King Capital Engineering Ltd (“King”) and King’s account clerk and project manager respectively.

10. The defendants’ principal defence in the criminal proceedings appears to be that there was no economic loss or any risk of such loss to the Banks or Wing Fai.”

Pressure by the liquidators

13. The basis of the first application for stay was twofold: first, unjustifiable delay, with which the judicial review proceedings are not concerned and, second, that “the liquidators had themselves or through their legal representatives, used the criminal prosecution of the defendants as leverage against the defendants to pressure them into a global settlement of the various civil proceedings that was ongoing between them”; that the liquidators failed to disclose material facts to the police when they filed a complaint; and that the police and the Department of Justice were “influenced by the conduct of the liquidators to the extent that they had abdicated their responsibilities as an independent investigator and prosecutor respectively.”[2]

14. This theme is reflected in the affirmation of Mr Midgley, solicitor for the applicants, filed in support of the judicial review application in which he says that :

“The principal issue in this application was whether the independence, impartiality and objectivity of the Department of Justice had been compromised by the alleged misconduct/criminal activity of the liquidators … who had launched a criminal investigation … with the leave of the High Court by making a written complaint to the [Commercial Crime Bureau]. The defence submission was that the liquidators had initiated the complaint for an improper purpose, namely to force a settlement of their civil proceedings against the defendants when there was, in fact, no economic loss and when they were anxious simply to recover the costs of the liquidation and excessive fees. The motives/conduct of the liquidators had compromised the prosecution and, when faced with reason to doubt the credibility of the liquidators, the DOJ had turned a blind eye and had abdicated its independence, objectivity and responsibilities as prosecutor.”[3]

15. The civil proceedings to which reference is made were ongoing civil proceedings concerning Wing Fai, the detail of which matters not for present purposes save that there were periodic ongoing negotiations between the liquidators and those representing the directors of Wing Fai for a settlement of those actions. The relationship between the liquidators and the directors of Wing Fai hardly ran smooth for we see that there was satellite litigation instituted by the directors (including the applicants) against the liquidators which included proceedings in defamation and for alleged contempt of court.

16. The basis of the applicant’s assertion of undue pressure by the liquidators for a settlement stems from a number of suggested incidents. The contention is that on a number of occasions the liquidators proposed a settlement figure of HK$35 million (later, a figure of HK$38 million) with an indication that if a settlement in that sum was reached, the criminal complaint would not be pursued. The position of the directors was that there could be no settlement unless the prospect of criminal proceedings was withdrawn.

Events in 2008

17. We have seen from the summary provided by Poon J that on 14 May 2008, the first and third applicants were arrested; the second applicant was arrested in mid-July 2008.

18. Following the May arrests, there were several meetings in 2008 between legal representatives of the applicants and personnel in the Department of Justice. The first two were on 23 June and 1 September; the third on 16 October. They were each held at the instigation or request of those representing the applicants in an attempt to persuade the Department of Justice that the interests of justice would adequately be served by discontinuing the criminal proceedings or rather, the threat thereof, thereby opening the way to a settlement of the civil proceedings; a course which was suggested to be acceptable since the banks had, in the event, suffered no loss.

19. The meeting on 16 October 2008 was attended on the part of the Department of Justice by Mr Gavin Shiu, a Senior Assistant Director of Public Prosecutions who was in supervisory charge of the case and Ms Denise Chan, Senior Public Prosecutor who was the advising counsel in the case; Mr Clive Grossman SC, acting for the applicants; Mr Grossman’s junior, Mr Sham; Mr Camille Jojo, the solicitor acting for the applicants; and Mr Hill, one of the liquidators.

20. A relatively full note was taken of that meeting by Mr Sham, a copy of which was before Judge Yau. It shows that at the meeting it was emphasised on behalf of the applicants that the letters of credit, which were the subject matter of the CCB investigations, had all been paid; the stumbling block to achieving a global settlement was the absence of finality to the criminal investigation; and that whilst it was appreciated that the prosecuting authorities had their duty to investigate possible commission of crimes, the applicants, who were emotionally drained by the long-running and greatly expensive litigation, were anxious to ascertain whether the prosecuting authorities might agree “after weighing the interests of all parties, … the cessation of all hostilities is the best outcome.” At this meeting, Mr Hill said that he could not recall any debt being outstanding and that “settlement is the best way forward.” The note records Mr Shiu as saying that : “There is no quid pro quo”, but adding that he wanted to see if any individuals had suffered and that he would speak with Ms Chan and have a conference with the police.

21. A few developments immediately thereafter merit mention:

(1) The following morning, 17 October 2008, Mr Shiu sent an e-mail to Ms Chan asking her to compile file notes in relation to the previous day’s meeting. The note said: “I think it important to document everything. There is obviously a lot of money flowing about in this case and if things turn out unsatisfactorily for them, they may try to use their call for meetings in some way. If we have adequate notes it will assist us.”

(2) Ms Chan sent a memorandum on or shortly after 16 October, routed through Mr Shiu, to the police officer in the case asking him what he knew about the liquidator’s involvement in the matter: “Have you received any letters from [ the first applicant’s] legal representatives indicating [ that she had been written to, pressing her to settle civil proceedings ]? ... We would like to know if you find [the liquidator] misleading or deceptive? Do you have any suspicions that the police may have been misled? Please consider the issue critically and carefully, as it may be possible that some matters raised by the liquidator, with hindsight, could be viewed as ambivalent or ambiguous.”

(3) In a further memorandum at about that time, also routed through Mr Shiu, Ms Chan said to the police: “As you know, the facts supporting this case are rather stale. It is a matter that should be given priority, for if we intend to prosecute we should not allow the investigation of peripheral issues to delay collecting evidence of the L/C fraud.”

(4) The reply from the police to Ms Chan, dated 17 October 2008 was to the effect that Mr Kennedy, the member of the team of liquidators in respect of whom the query had been raised, had never provided a statement to the police, merely some documents to initiate a report ( implying therefore that there was no current basis to suspect that any misleading information had been provided); and that no letter concerning settlement proposals had ever been received from the first applicant’s legal representatives.

22. There was evidence that a few days before the meeting of 16 October, Mr Hill had spoken to Mr Jojo suggesting that in the event of a settlement “he would be in a position to confirm to the DOJ that the liquidators had no further interest in pursuing a criminal complaint.”[4]

23. There was evidence by another solicitor that in the context of seeking a global settlement of the civil proceedings in the sum of $38 million, it was suggested by one of the liquidators that in the event of such a settlement there would be “no worries for the criminal matter”; in other words, that they would withdraw the complaint.

24. There was also testimony that in March 2010, in the context of settlement negotiations, a solicitor (referred to as “Mr A”) representing the liquidators suggested to a solicitor acting for the applicants that Mr Hill could stay out of the jurisdiction so as to avoid giving evidence, in which case the prosecution would “lose impetus”. It is fair to record that this assertion has never been put to Mr A.

25. In the event, the settlement negotiations did not bear fruit. We are informed that they collapsed a few weeks after the October 2008 meeting.

Charging the applicants

26. In early September 2009, solicitors acting for the liquidators wrote to the Department of Justice stating that the settlement discussions had stalled, that there appeared to be little prospect of settlement, that “we write to enquire the progress of the prosecution of the respondents”; and that “our client has also instructed us to offer his assistance in regard to this prosecution.”

27. The applicants were charged with the present offences in December 2009.

28. “Accordingly,” says Mr Midgley “there was evidence that the liquidators have been acting in an improper manner and were using the criminal process for an improper purpose. The defence sought at an early stage further disclosure from the DOJ regarding the contact between the Department/police and the liquidators prior to charges being preferred in December 2009. It was material to know to what extent the Department was aware of the conduct and motives of the liquidators and to what extent it could be argued that it had compromised its duties and obligations as a prosecutor. Were the liquidators able to push the button to arrest or charge at a given time? Was the Department aware of the use of the criminal process by the liquidators for an improper purpose, namely to force the payment of a ‘settlement’? What actions or supervisory steps did the DOJ take to protect the integrity of the proceedings?”[5]

The request for disclosure

29. In August 2011 a letter was written to the Department of Justice by those acting for the applicants seeking all correspondence, documents, notes of meetings and other contact between the liquidators on the one hand, and the Department of Justice and the police on the other. The reply, dated 21 September 2011, stated that notes of such meetings as may have taken place before 4 September 2009 between the liquidators on the one hand and the Department of Justice and the police on the other had been misplaced and could no longer be located; but an index of correspondence between the Department and the liquidators after that date was attached. It is relevant to note that such correspondence as had taken place between the police and the liquidators before that date was still available and further that neither the Department nor those acting for the applicants have asked the liquidators to provide copies of such correspondence or notes in their possession relating to meetings or representations between themselves and the Department before 4 September 2009.

The events of May 2012

30. In early May 2012, those acting for the applicants filed their submissions in support of the application for a stay. The theme of the application, which we see from the written submissions, is that it was an abuse of the court’s process to use that process for an indirect or improper purpose; and that in this case the proposed prosecution was but a device to force the applicants to succumb to the liquidators’ pressure to settle the civil litigation.

31. As a result of receipt of those written submissions, there flowed an exchange of memoranda within the Department of Justice which have now become of central relevance. We need to deal with them in some detail.

32. On 9 May 2012, shortly before he was due to go on leave, Mr Shiu was given a copy of the defence submissions for the stay application. It is right to record the fact in March 2010 the case file had been transferred from Ms Chan to another counsel who was not under Mr Shiu’s supervision.

33. Mr Wesley Wong, Deputy Director of Public Prosecutions, wrote a lengthy note to Mr Shiu dated 21 May 2012, the date upon which the hearing of the stay application commenced. It is a four-page note which sought from Mr Shiu “such information and documents which may be relevant” to the pending stay application. It refers in particular to the meeting of 16 October 2008 and requires “a detailed written explanation” in relation to a host of questions concerning the meeting; for example –“the full circumstances leading to the holding a meeting”; who initiated the meeting; the purpose of the meeting; why, instead of a meeting, written representations from those acting for the applicants were not made; whether Mr Shiu had sought approval from any of his superior officers to hold the meeting; whether the police had been invited to attend the meeting and if not, why not; and whether or not Mr Shiu’s decision to agree with Ms Chan’s advice in favour of prosecution was affected by any extraneous considerations. He was required to reply by noon 24 May.

34. It is relevant to state that this note from the Deputy Director to a senior officer in the Department of Justice is in formal vein, carrying the colour of interrogatories and the clear implication that the fact of holding the meeting on 16 October 2008 without prior approval was a matter of concern. We make the point not by way of criticism but as fact, to the relevance of which we will return.

35. On 21 May, Mr Shiu was on leave. He returned to work on 23 May. He was obviously not pleased with the tone and content of the note with which he was then presented. That much is evident from his reply dated 23 May. He complained of the short notice he was given and his irritation, even anger, is illustrated by a passage in which he says:

“I ask in what capacity do you write to me? Are you the instructing solicitor of [the case]? Are you a trial counsel? Are you writing as a representative of my employers? Why can you not speak to me about this matter?”

36. This response and other exchanges did not go down well with the Director of Public Prosecutions who wrote an urgent note to Mr Shiu dated 24 May 2012 referring to Mr Shiu’s “reluctance … to cooperate with the prosecution team in the handling of the case.” The Director formally required him to provide detailed explanations in response to the note 21 May and to comply as well with “any further directions that I may give you in respect of the handling of the case as well as any possible examination that I may conduct on the appropriateness of the participation by DOJ officers at the meeting of 16 October 2008 or any other related matter.”

37. The outcome was a reply by Mr Shiu dated 24 May 2012 much in the form of a witness statement. He there tells of the normal responsibility for case files in the section for which he was responsible; that at some stage the case file was allocated to Ms Denise Chan who was advising counsel for the case and he supervising counsel; that the responsibility of Ms Chan was to provide prosecutorial advice and to be in day-to-day control of the case; himself, to approve or disapprove advice given. In relation to the meeting of 16 October 2008 he said that he believed that Mr Grossman had approached Ms Chan for a meeting and had asked Mr Shiu to be present. In his statement, Mr Shiu contends that “there was no need to seek approval from anyone as this was within the normal working practice of the DOJ and in particular the [Commercial Crime Unit]. … .” At all times, he said “as far as I was concerned Ms Chan and I acted with integrity and consistently with the then published “statement of prosecution policy and practice”. Ms Chan’s advices were consistent with that and I countersigned them as I was satisfied that they were valid opinions based on the facts stated in the advices. I have been asked if her opinions on my countersigning was affected by extraneous considerations. I am not clear what is exactly meant by the enquirer but I was not affected by any consideration inconsistent with all or any of my duties.”

38. Mr Shiu was due to testify in the stay application on Tuesday 29 May 2012.

The deletion

39. On Friday May 25, the day after he had made his statement, there occurred the event which lay at the heart of the second stay application and is the act upon which the application for leave to apply for judicial review concentrates. Mr Shiu instructed his secretary, Ms Rebecca Nip, to download a number of documents from the Document Management System onto a USB thumb drive and then to delete them from the System. To the precise circumstances in which he came to do so, we will return but it is common ground that he did so.

Testimony in May 2012

40. On 29 May 2012, Mr Shiu testified. He was asked about the extensive delay in pursuing the prosecution and said that whilst he could not speak as to much of it because the complaint had been made well before he came into the case, he thought it had partly to do with the fact of ongoing litigation and with issues of legal professional privilege[6]. He said that by October 2008 he knew very little about the case and remembered in particular some problem about the return to Hong Kong of the second applicant, the first applicant’s daughter. As for the meeting of 16 October 2008, he repeated the contention that whatever the attitude of the liquidators “we would carry on with our prosecution if we wanted to, using our own policy and practice and going by our own investigation and we would not pay heed to what [Mr Hill, the liquidator who attended the meeting in October] suggested in any way. … We would not allow that to interfere with our decision-making.”[7] As for the missing file, he knew nothing about it save what he had been told.

41. There was no mention made by him of the earlier meetings with Mr Grossman; but it is fair to say that he was not asked whether he had had previous meetings.

42. The following day, 30 May 2012, Ms Denise Chan testified. The effect of her evidence was that she was the person who recommended who should be charged and what charges should be preferred, a recommendation which was reviewed by Mr Shiu; that the charges which were in fact laid were those which she had recommended; and that at no stage in the making of the recommendations was she in any way influenced by anything said by the liquidators.[8] Contrary to the evidence of Mr Shiu, she said that he asked her to attend the meeting with Mr Grossman. As to the impact of improper motive by the liquidator, had that been established, she noted that whilst that would have been a matter for investigation, nonetheless “there was other evidence in this case as far as I can recollect, because if I remember correctly, he was only a person who made a complaint to the police.”[9]

June 2012

43. What happened next is that Ms Chan was upset by the implication, which arose both from the cross-examination the day before and newspaper reports the following morning, that the meeting with Mr Clive Grossman on 16 October 2008 had been arranged by her. She then realised that she could retrieve old e-mails from her archive folder; which she did and discovered a number of documents which revealed not only the memoranda sent out by her pursuant to Mr Shiu’s instructions following that meeting but also the fact of the meeting on 1 September 2008 between Mr Grossman and Mr Shiu, with Mr Sham and one other in attendance. She immediately drew this to the attention of Mr Wesley Wong.

44. The notes of the meeting of 1 September, compiled by Mr Shiu and dated 2 September 2008, had been copied by him to Ms Chan, a fact of some significance. There is no challenge to the accuracy of what is there recorded, namely, representations by Mr Grossman attacking the bona fides of the liquidators and emphasising that, in the event, no one had suffered financially. If the civil case were settled, he asked, would the prosecution drop the case? “I informed Mr Grossman SC,” Mr Shiu recorded “that I was not making any decision or comment vis-a-vis his request. He said he did not expect me to, until after we had considered everything. I asked for [a copy of a letter referred to during the meeting in which the first applicant had been pressed to settle the civil proceedings]. I did say that normally we make no promises and there is no quid pro quo for making a civil settlement. Mr Grossman agreed but said this was an abnormal situation because of [the liquidator’s] involvement and other factors he had outlined.”

45. We next see from admitted facts dated 1 June 2012 – that is, whilst the first stay application was still in progress – that the applicants were provided with a copy of the note of the meeting dated 1 September 2008.

46. On 4 June 2012, there was an interview conducted by David Leung of Ms Rebecca Nip, who was Mr Gavin Shiu’s secretary. She was asked about a document that was missing from the document management system, namely, an e-mail sent by Ms Nip to Ms Chan on 16 October 2008 attaching the case conference record of the meeting on 1 September 2008. According to the record of that interview, she was reluctant to answer “anything that involves my boss. He has said to me that if anyone approaches me, I cannot answer.” She said that as for the missing document, her boss had “instructed me to save [certain documents] in his [USB thumb drive]” and having done so, she deleted them from the document management system. “He said he wanted to keep it himself, has to save at his thumb drive.” She was told by Mr Leung not to inform Mr Shiu that the matter had been enquired of her.

The first ruling

47. This was the state of play at the time of the first ruling dated 5 June 2012.

48. The judge noted the gravamen of the applicant’s complaint, delay apart, that “the police and the Department of Justice had been influenced by the conduct of the liquidators to the extent that they have abdicated their responsibilities as an independent investigator and prosecutor respectively.”

49. He noted that, on the evidence before him, “Mr Shiu was mindful of the role that the liquidator might be playing or seeking to play in the criminal prosecution. He was the one who questioned the integrity of the liquidator, asking the police for information. Having heard from Ms Chan in the witness box, I have no doubt that she had acted professionally and without any regard to anything the liquidators might have said on the criminal proceedings. I believe her when she said that she made that decision based only on the evidence and the evidence alone as to who to charge and what to charge them with.” He noted as well, as to the meeting of 16 October 2008, Mr Shiu’s comment in relation to the representations made to him that “there is no quid pro quo.”

50. “My finding,” he said “is that, whatever the motives and conduct [of] the liquidators or their legal representatives, the Police and in particular the Department of Justice has proved that they had maintained their independence, impartiality and objectivity throughout.”

After the first ruling

51. On or about 7 June 2012, the police were called in to the Department of Justice to investigate the deletion of documents by Mr Shiu.

52. The long and short of this exercise, in terms of the result, is that all the documents transferred to the USB thumb drive and deleted from the document management system were retrieved. So much is common ground between the parties. In all, 27 files had been deleted from the system between 20 and 25 May 2012 of which only seven were files which had been created by Mr Shiu or Ms Nip. We are told that the record of the minutes of 1 September 2008 was separately restored.

53. Of those seven documents, two were unconnected with this case; one was a note from Mr Shiu to Ms Chan dated 16 October 2008 asking her whether there was any substance to the claims made by Mr Grossman about the liquidator; another was a file note about the case but which is not said to have any bearing on the stay issue; similarly with an attendance note dated 17 July 2008; and notes of a telephone conference with the police on 16 July 2008 about the proposed arrest of the second applicant on her return to Hong Kong.

54. In a note from Mr Wesley Wong to Ms Chan dated 27 June 2012, Mr Wong said that on 22 June 2012, Mr Grossman told the Department of Justice that “having gone through fee notes and diaries, there was in fact one more meeting held ‘at the office of Gavin Shiu’ on 23 June 2008.” Ms Chan was asked to see whether she had any records relevant to that meeting. She found manuscript notes she had made, and they revealed a theme advanced by Mr Grossman similar to that in the subsequent two meetings, namely, concern about the suggested misleading conduct by the liquidators, with a view to persuading the prosecutors that this may not be an appropriate case to pursue further. There is included in the notes the phrase: “Premature to comment charge or not.” The record also suggests that Mr Grossman said that when the second applicant arrived in Hong Kong in July she would surrender to the police and that those representing her asked for an undertaking not to arrest her upon her arrival in Hong Kong.

The second application

55. All matters discovered by the Department of Justice after the hearing of the first application were disclosed to those acting for the applicants. This resulted in a second stay application which concentrated upon the deletion of documents and the suggested ramifications thereof.

56. At the hearing of the second application, Mr Shiu, Ms Chan and Ms Nip testified:

(1) Ms Chan testified that the meeting of 16 October 2008 was not arranged by her at Mr Grossman’s request, as had been suggested by Mr Shiu. Nor had she told Mr Shiu that Mr Grossman did not want the police to be present at the meeting. The judge asked her a number of questions to ascertain whether it was still her position that in recommending whom to charge and with what offences, she had not been influenced by anything communicated by the liquidators in relation to Wing Fai; and she confirmed that that was indeed her position.

(2) Mr Shiu was cross-examined extensively by leading counsel for the applicants:

(i) He agreed that documents relevant to a current investigation or prosecution should never be destroyed; but he baulked at the suggestion that they should never be deleted from a computer system, suggesting that in certain circumstances that might not matter if the record was still intact on some other memory device [10]. He said that when he made his statement prior to the proceedings in May, he had not remembered the meetings with Mr Grossman prior to 16 October 2008 and as for the differences between his evidence and that of Ms Chan as to the circumstances in which the third meeting came to be held, he was relying on his memory and the events were almost four years ago.[11]

(ii) As to the circumstances in which he instructed his secretary on 25 May 2012 to delete documents, he said that he had asked the previous day to see whether she could find relevant documents and on the morning of 25 May she presented him with a sheaf of papers at which he glanced briefly and shortly after asked her to put them on a thumb drive and delete them from the system. Then this:

“Q. … why did you want her to delete them?

A. Well, my concern was that in fact -- was that I wanted to be in control of them, in possession of them and that when my colleagues wanted them I would be – know when they got them and in what context and I'd also be able to explain to them the context of the drafts because, as I have just been saying to you, they are drafts. I am not 100% certain whether are the final version that went on the record. The record is the hard copy which has been lost and I was just a little bit concerned. In fact, if anything, I was a bit concerned that my secretary would get dragged into some potential conflict of my colleagues and that’s one of the concerns. That was one of my concerns.

Q. So you were really trying to protect her, in effect.

A. That’s one of the reasons, yes, and it was only a momentary decision…. . It was just one of those momentary things. And obviously, now, I regret that I did that … .”[12]

(iii) He was asked why, when he gave evidence on 29 May, he did not draw to the attention of the judge the fact of the meeting of September 2008, which was reflected in one of the deleted documents; and he replied that he did not see the document until the evening 31 May [13]. He denied that he had told Ms Nip that if anyone approached her, she should not speak to them [14].

(3) Ms Nip said that it was Mr Shiu who presented her with a clip of documents and asked her to find them in the document management system and, having first transferred them to his thumb drive, to delete them from the system. She did so and returned the thumb drive to him. She was asked whether on any occasion other than that, Mr Shiu had ever asked to do something like that before and she replied: “Only occasionally”; she did not know what those previous documents were, whether his personal documents or not.

The impugned ruling

57. The judge noted the applicants’ contention that the evidence of Ms Nip suggested that there might be other documents in relation to the case which had been deleted and since no one knew what those documents were and what information they might contain, the applicants could not enjoy a fair trial; further, that the instruction to delete certain documents and Mr Shiu’s failure to inform either the prosecution or the defence or the court about that deletion had “so prejudiced the integrity of the justice system that the court ought to exercise its discretion to stay proceedings even if the defendants could still have a fair trial.”

58. The judge noted that all documents removed from the computers had been restored and that it was not suggested by the applicants that the restored documents were relevant. As for the answer given by Ms Nip that on occasion she had deleted documents on Mr Shiu’s instructions, the judge’s interpretation of that evidence was that the deletion of documents was “nothing out of the ordinary” and the judge concluded that “there is insufficient evidence to support the drawing of an inference that since Nip had done other deletions before, there must be documents relating to this case that had gone missing.”

59. As for Mr Shiu’s motive in deleting documents, the judge said that Shiu must have been well aware that there was a backup system, to which he had not sought access and he had openly asked another person to do the deletion for him and the nature of the documents themselves which were retrieved showed that “there was nothing for Shiu to hide.” Furthermore, the notes of the meeting of 1 September 2008 had been copied to Ms Chan and he had not asked her to delete the record from her computer. “I find,” he said “that I can accept Mr Shiu’s explanation given in court of why he instructed Ms Nip to locate and delete the files from the service. It may not have been the wisest move on his part but I do not find that there were any sinister motives behind the deletions.” He noted further that the meetings in question had been held with the applicants’ legal representatives so it could hardly be suggested that he was hiding anything from them. Then this, which is said by Mr Caplan to be a perverse finding which taints the findings as a whole:

“I find that there is not enough evidence to prove that Mr Shiu had acted in bad faith in the deletion of the documents and his failure to disclose to the court such deletions.”

60. Accordingly, the judge held that the applicants had failed to prove to the requisite standard that they were deprived of a fair trial.

61. As for the second limb of the stay application, that the conduct in question was an affront to the integrity of the criminal justice system such as to warrant a stay, the judge noted key principles, namely, that it was only in exceptional circumstances that a stay would be ordered where a fair trial was possible and, citing Lord Steyn in R v Latif [15] as referred to in HKSAR v Lee Ming Tee & Anor [16] “[i]n the absence of a finding of “bad faith”, [exceptional circumstances warranting a stay] will rarely, if ever be [established] in a case where a fair trial is still possible. Even if there be a finding of ‘bad faith’, that finding would not necessarily conclude the matter.”

62. The judge took into particular account that at the meeting of 16 October 2008, Mr Shiu “had tersely indicated that there would be no quid pro quo from the Department should the parties choose to settle”; that documentary evidence showed that after the meeting, specific enquiry had been made of the police about the integrity of the liquidators and that Ms Chan, to whom primarily fell the decision whether to prosecute, was “alive to that issue.” Long after the applicants had been arrested and charged, Mr Shiu instructed his secretary to seek out some files, copy them to a thumb drive and then delete them from the office computer. The motive, said the judge, was innocent. Whereas “on the face of it, this is suspicious action, but if one looks at the contents of the documents deleted and restored as well as the circumstances surrounding the deletion, there was nothing much in relation to the deletions that is relevant to the present case.” He noted Mr Shiu’s failure to inform the Court of the deletion but “taking all the circumstances into consideration, a proper balancing exercise would lead one to conclude that no stay should be granted. By my reasoning above, I find that the conduct of Mr Shiu was not done with bad faith. I further find that his action in instructing Ms Nip to make the deletions and his failure to tell the court about the instructions is not so serious that ‘irreparable prejudice’ would be caused to the integrity of the judicial system if the prosecution were continued.”

63. Accordingly, he rejected the second application.

The notice of application

64. The notice of application for leave to apply for judicial review asserts that “any reasonable tribunal should have found on the evidence that Gavin Shiu acted in bad faith and that his conduct and the wider ramifications of his lack of candour undermined the prosecution’s fundamental duty of disclosure and the integrity of the proceedings such that a permanent stay should have been ordered”; and that “this application has … wider importance to the system of criminal justice in Hong Kong, to the standards which the courts expect and require of prosecutors, and to the public perception as to whether those standards are in fact maintained.”

The judgment of Poon J

65. Poon J was unimpressed by the suggestion that other documents relevant to the case may have been deleted earlier than May 2012; the inference to that effect sat ill, he thought, with the nature of the documents recovered. They simply did not support the suggestion that he was seeking to hide from the defendants, documents that were or might be of use to them.

66. As to the second limb of the stay application – the one which concentrated on the integrity of the criminal process generally – the judge said that in the overall circumstances of the case, the conclusion of the District Court judge was correct; at the close of the submissions on the first stay application, the missing minutes deleted by Ms Nip had been provided to the defence and, in any event, it was beyond dispute that at the meetings in question Mr Shiu had made it amply clear that any global settlement pursued by the liquidators had no bearing, as far as he was concerned, on the question whether the prosecution would be pursued. The District Court judge had accepted Ms Chan’s evidence that the decision was hers and that she was in no way influenced by the liquidators’ conduct. On the merits, Poon J’s judgment was against the application, but he commented that in any event there existed no exceptional circumstances that warranted the exercise of the court’s supervisory jurisdiction to interfere with the criminal proceedings. As far as he was concerned, the applicants had failed to establish a reasonably arguable basis for the grant of leave and, accordingly, he refused leave.

This appeal

67. This appeal is in effect a regurgitation of the arguments in the court below. It is said, as to the issue of abuse of process, that the instruction of a case officer to delete relevant documentation during the currency of criminal proceedings constitutes serious misconduct and that it is palpably clear that Shiu acted in bad faith; there could be no acceptable explanation for his conduct other than that it was to undermine the disclosure process which is a fundamental requirement of a fair trial. Having regard to Ms Nip’s evidence that deletions had occurred before, speculation that material relevant to this case had previously been deleted was reasonable speculation. Not only was it no longer possible for there to be a fair trial, but the executive conduct in this case was so grave as to warrant a stay on the basis that it constituted an affront to the conscience of the court and undermined public confidence in the integrity of the criminal justice process.

68. It is conceded by Mr Caplan that it is only in exceptional circumstances that the court in its supervisory function will entertain a challenge collateral to ongoing criminal proceedings but, he contends, serious misconduct must be admonished and the circumstances of this case were unique, such that it was inappropriate to permit the criminal proceedings to roll on.

Analysis

69. We are firmly of the view that there is no valid basis upon which to impugn the refusal of the District Court judge in July 2012 to order a stay; that the conclusions drawn by Poon J were correct; and, most particularly, that there has been shown no valid basis upon which the Court of First Instance ought to have been asked to exercise its supervisory jurisdiction in the face of the alternative remedy available to disgruntled defendants in criminal proceedings, namely, the normal criminal appellate process in the event of a conviction.

70. But for the fact that, on its face, the deletion of material by a prosecutor is such a troubling occurrence, the call upon this supervisory procedure might properly have been rejected summarily. Although it was not rejected summarily, a study of the evidence in full, the fact that what was deleted was retrieved and, in so far as it related to the case at all, related to events the details of which were well known to the defence and had nothing to do with the evidence relating to the charges themselves, readily illustrates the proper exercise of the District Court judge’s discretion and that a collateral challenge was not warranted.

71. The core complaint is that the District Court Judge concluded that Mr Shiu did not act in bad faith. It seems to us, in context, that by that he meant that Mr Shiu was not engaged upon a deliberate course of conduct designed to enure to the disadvantage of the applicants in the criminal case. But, even if the judge was generous in his exoneration of Mr Shiu’s conduct or motives, it appears to us that it was perfectly open on the evidence for him to conclude that such unacceptable conduct upon which Mr Shiu had engaged was not designed to prejudice the defendants. And if that be so, the application for a stay was one which sought the court’s action as a punitive measure rather than because the circumstances as a whole were such as to render it unconscionable for the criminal case against the applicants to proceed. The former motivation for relief, the punitive course, is not an appropriate basis upon which to order a stay: see HKSAR v Ng Chun-to Raymond & another.[17]

72. What, one is bound to ask, is the motive to be attributed to Mr Shiu’s conduct? One may postulate three alternatives:

(1) to hide evidence that may undermine the alleged criminal liability of the applicants in relation to the charges they face;

(2) to hide evidence that the prosecution has been pursued for an improper purpose which in the context of this case means as a weapon to force settlement of the civil actions; or

(3) as part of a dispute or battle of wills internal to the Department of Justice, in which Mr Shiu saw himself unjustly treated with hostility by senior officers to which treatment or perception he reacted in anger, or in apprehension as to his own position for taking part in meetings with Mr Grossman without the authorisation of his seniors.

73. The first alternative may safely be discounted. It has never been put forward as a realistic motive in this case and the documents retrieved do not in the slightest contain material which casts some new light, heretofore unknown to the applicants, upon their culpability. Indeed, the core facts seem to be admitted with the sole issue resting upon the question whether economic prejudice or the risk thereof may be shown.

74. As for the second alternative, the one suggested by the applicants, a rational analysis of the established facts leads ineluctably against such a conclusion. The established facts are these:

(1) The applicants were eager to settle, so long as the prosecution was dropped. The liquidators were eager to settle and at the meeting of 16 October were making representations in support of dropping the criminal prosecutions. The prosecution is said to have been dancing to the tune of the liquidators: that was the basis of the application for stay. Yet at no stage did the prosecution as much as hint that the prosecution would be dropped. To the contrary, we see twice recorded the stated position of Mr Shiu that there would be “no quid pro quo”.

(2) The testimony of Ms Denise Chan was that she was in no way influenced by the liquidators. That testimony was accepted by the judge. There is no challenge to her veracity or to that finding.

(3) The documents deleted were all recovered and there is nothing in them to support the theory that Mr Shiu was hiding anything that might assist the applicants.

(4) The allegations made by the applicants that the liquidators had misled the police were investigated at the behest of Mr Shiu. In his meeting with them on 16 July 2008 he disclosed to them the fact of his meeting with Mr Grossman on 23 June. As for the meeting on 1 September 2008, which he also did not mention in court when he first testified, he had copied his notes of that meeting to Ms Chan; and the meeting notes of 16 October referred to “our last meeting”. This sits ill with the notion that he was intent on hiding the fact or content of those earlier meetings; a notion that also ignores the fact that the meetings were called at the behest of those acting for the applicants themselves: Mr Shiu could hardly have thought that the applicants were unaware of the meetings.

(5) The judge had the advantage of twice hearing and seeing Mr Shiu testify. That does not conclude the matter in favour of the judge’s analysis but it is a relevant factor.

(6) In so far as the applicants stress the fact that deletions were made on other occasions, Mr Shiu was not recalled to be asked what those deletions might have been. In the light of what we know about the documents deleted in May 2012, there is no basis upon which to infer that what was earlier deleted may have been documents about this case the revelation of which might have assisted the applicants.

75. As against that, there is much to support the notion that the deletions were occasioned by strife between Mr Shiu and his superiors within the Department of Justice. The questions asked by them of Mr Shiu were in the nature of a formal inquiry, suggesting that he may have acted improperly in holding the three meetings with Mr Grossman in 2008 without prior approval. Mr Shiu’s reaction was highly defensive and antagonistic. It is difficult to fathom quite what he meant by his answer to Mr Caplan’s question as to the motive for the deletion; but it is clear enough that he was saying that his motive had nothing whatsoever to do with the merits of the prosecution or of the stay application, rather it was a move in protection of himself against what he perceived to be high-handedness by senior officers in the Department. In the round, we cannot see that the judge erred in favouring this interpretation of his motive.

76. That this was not the behaviour acceptable of a senior prosecutor is conceded by the respondent. Even if his conduct may properly be classified as conduct in bad faith, not all acts in bad faith will warrant a stay of proceedings. The purpose and circumstances of the act are crucial, as are all facts germane to the question whether despite the impugned conduct it is nonetheless possible for the applicants to have a fair trial and, if so, whether the pursuit of the prosecution undermines the integrity of the justice system.

77. The question whether to grant a stay is a matter within the discretion of the trial judge. Far from establishing that the judge exercised his discretion in a way amenable to remedy, we are satisfied that he exercised his discretion correctly.

78. This is a lengthy way of illustrating that the case stands firmly against the applicants on the merits of the application for leave. But the detailed examination of the facts illustrates most particularly why this was never a case for a collateral challenge.

Collateral challenges

79. In Yeung Chun Pong v Secretary for Justice [2008] 3 HKLRD 1 at para 67 it was said that:

“67. There is a clear public interest in ensuring that charges, once before a court, must be tried. There is built into the system a host of safeguards to secure for an accused a fair, and an appropriately speedy, determination. If those safeguards are not afforded in a particular instance, there is provided by the legislature a prescribed appeal mechanism. That mechanism does not envisage interlocutory appeals or collateral challenges. That is for very good reason, namely, that in practice most trials would constantly be interrupted to the disadvantage of effective decision-making and the disruption of the system as a whole. Sometimes disruption to and delay of a particular trial caused by a judicial review application – or even by repeated applications in the one case – may derail a prosecution properly brought by the effect of that delay upon witnesses or their availability. This disruption may find aggravated form as in the present case, where there is an ex parte application made for leave; leave is granted without hearing the prosecutor respondent; an application is then made to set aside leave; that is refused; there is an appeal from that refusal, an appeal that may find its way to the Court of Final Appeal and, if the leave is not disturbed, there is a judicial review and renewed appeals from whatever decision emerges therefrom; and whilst all this is going on, hearing dates for trial are repeatedly vacated. The outcome is that unwarranted applications to stay proceedings combined with collateral challenges themselves run the risk of abusing the court’s process.”

80. Instead, the applicants sought to draw comfort from Dairy Farm Co Ltd v Director of Food and Environmental Hygiene [2005] 3 HKC 1, reliance upon which we sought strongly to discourage in Re : Kit Ko & Ors [2008] 4 HKC 323. There is no principle underlying Dairy Farm which assists the applicants. The collateral challenge ought not to have been mounted.

Conclusion

81. Accordingly, we dismiss this appeal. We make a costs order nisi that the costs of and occasioned by the appeal be to the respondent.

(Frank Stock)
Ag. Chief Judge of the
High Court

(Michael Lunn)
Justice of Appeal

(G. Lam)
Judge of the
Court of First Instance

Mr Jonathan Caplan QC, Mr Cheng Huan SC and Mr Bernard Cheng, instructed by Haldanes, for the 1^st to 3^rd Applicants/Appellants

Mr Daniel Marash SC (on fiat) and Mr Ira Liu SSP, of the Department of Justice, for the Putative Respondent

[1] [1970] 1 Ch 345 at 402

[2] We take this from the first ruling.

[3] Affirmation, para 4(a)

[4] Mr Midgley’s affirmation para 4(iv)(a)

[5] ibid para 5.

[6] Appeal bundle p 216.

[7] ibid p 224.

[8] ibid pp 230 and 240.

[9] ibid p 238.

[10] ibid p 263.

[11] ibid pp270-271.

[12] ibid pp 272-273.

[13] ibid p 275.

[14] ibid p 279.

[15] [1996] 1 WLR 104 at 112 G-H.

[16] (2001) 4 HKCFAR 133.

[17] CACC 178 of 2010, unreported, 31 July 2013

【明報專訊】粵首環保（1191，前稱中富控股）前副主席鄭潔賢，被指串同女兒鄭惠明及三名職員，詐騙4家銀行逾3100萬元信用狀，經多次提出終止聆訊及司法覆核後，鄭潔賢昨在案件開審前一刻，承認全部11項串謀詐騙罪，其女兒則獲不提證供起訴；餘下被告全部不認罪，將押後受審。

提供虛假資料 騙取3100萬信用狀

案情指出，鄭潔賢（57歲）於2001年9月3日至2002年2月2日間，指令粵首旗下子公司永輝建築的會計部人員，根據其提供的交易資料（實為虛假），先後11次向渣打銀行、廣安銀行（後併入星展銀行）、廣東省銀行（後併入中國銀行），以及香港華人銀行（後併入中信嘉華銀行）詐騙逾3100萬元信用狀。款項其後以永輝名義全數清還，銀行並無損失。永輝於2002年7月被申請清盤，清盤人於2004年向警方舉辦此案。

女兒獲不提證供起訴

鄭的女兒鄭惠明（37歲）獲不提證供起訴；粵首職員盧樺（47 歲）及永輝會計部人員葉健敏（41 歲）及崔敏端（38 歲）則否認共13項串謀詐騙及洗黑錢罪，聆訊今續。鄭潔賢獲准在候判期間保釋。

2013年 10月 22日 00:00

【香港商報訊】上市公司「粵首環保」（前稱中富控股）前副主席鄭潔賢，被指串同女兒鄭×明及3名公司董事，虛構交易以訛騙4間銀行合共3000萬元信用狀一案，經過近兩年以律政司高層刪除案中資料為由多番提出終止聆訊及司法覆核失敗后，案件昨日有突破性發展，鄭潔賢突然承認全部11項串謀訛騙罪名，繼續保釋至本月29日再訊，而鄭×明面對的串謀訛騙及洗黑錢等12項罪，則獲控方不提證供起訴。餘下3人則不認罪，案件延至今午開審。

其餘3被告不認罪今受審

辯方大律師關禮善昨日指出，被告牽涉的公司早已向銀行清還所有信用狀欠款，銀行在事件中沒有任何損失，或潜在令銀行蒙受經濟損失的危機，且警方早於04年接獲舉報，08年警方正式將鄭拘捕，翌年鄭潔賢被正式起訴，案件拖延甚久，對被告纏擾多年。此外，被告過往一直獲准自由出入境，均依時出庭應訊，乃要求法庭繼續批准鄭潔賢擔保外出。主審法官陳仲衡批准鄭續以25萬元現金保釋外出，但須於24小時內交出旅游證件及不准離港。

案中5名被告分別為鄭潔賢（57歲），其女鄭×明（37歲），葉×敏（41歲），崔×端（38歲）及盧×（47歲），各人共被控11項罪名，包括串謀訛騙及洗黑錢罪名。

控方大律師唐立品稱，鄭潔賢於事發時為粵首環保的副主席兼總財務總監，主席為葉光，公司行政總裁包括甘成和勞錫超。該公司旗下有三家附屬公司，其中包括永輝建築有限公司。被告盧×是公司高層，專責涉及中國內地的項目。

涉以假資料申3100萬信用狀

1997年至2010年間，鄭潔賢及葉光獲委任為永輝的董事，被告葉×敏及崔×端為永輝的會計部職員，向銀行申請信用狀事宜全聽命於鄭。案發於2000年9月至2002年2月期間，永輝在4家銀行包括星展、中銀、渣打及中信泰富等均持有透支服務及定期存款等。案中鄭女兒為Famous Capital （FC）有限公司的董事，該公司從沒有任何生意運作，屬於一空殼公司。另King Capital （KC）有限公司的兩名董事則是被告崔、盧2人。

控方指，永輝向該等銀行呈上虛假的瀝青建築物料交易文件，假稱永輝將向兩公司提供大量瀝青原料，令銀行成功批出合共3100多萬元的信用狀給上述FC及KC公司。但有關信用貸款已於2002年5月全數清還給銀行。

詐騙銀行罪成

粵首環保前高層入獄

【新報訊】上市公司粵首環保（1191）前副主席鄭潔賢，早前在區域法院承認11項串謀詐騙罪，涉及她2001年至2002年間，指使下屬以假文件虛構交易，詐騙5間銀行取得逾3,000萬元信用狀貸款，鄭潔賢昨日被判入獄21個月，同案3名公司職員亦分別被判入獄13至24個月。
4名被告分別被控串謀訛騙及洗黑錢等多項罪名。其中鄭潔賢（61歲）為粵首環保前副主席（前稱中富控股）、崔敏端（42歲），永輝建築會計部職員，兩人早前已認串謀詐騙罪。另外兩名否認控罪的被告葉健敏（45歲），中富附屬永輝建築會計部職員及盧樺（51歲），中富高層，經審訊後均被定罪。
法官昨日判刑時指出，本港金融體制是基於互信及基礎文件的真確為基礎，4人干犯的罪行是嚴重罪行，故必須判囚。案件編號：DCCC 153/2010
主審：陳仲衡法官

2014年3月22日星期六

粵首環保前副主席鄭潔賢涉串謀女兒及董事詐騙銀行信用狀

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2014年3月22日 星期六

粵首環保前副主席鄭潔賢涉串謀女兒及董事詐騙銀行信用狀

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2014年3月22日星期六