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【案例名称】
THE QUEEN v. CHIU TE-KEN, DEACON AND ANOTHER
【审理法院】 锟竭等凤拷院 / High Court
【案件类别】 锟斤拷院锟斤拷锟铰帮拷锟斤拷 / Construction and Arbitration Proceedings
【判决日期】 1993/4/20
     
 
【正文】
 
 
THE QUEEN v. CHIU TE-KEN, DEACON AND ANOTHER

C.C. No. 122 of 1992

HEADNOTE

Criminal law and procedure - stay of proceedings - principles - Bill of Rights, Articles 10 and 11.

 

SUPREME COURT OF HONG KONG

HIGH COURT

CRIMINAL CASE NO. 122 OF 1992

____________

BETWEEN

THE QUEEN

v.

CHIU TE-KEN, DEACON

CHIU TAT-CHEUNG, DAVID

____________

 

Coram: The Hon. Mr. Justice Leonard in Court

Date of Hearing: 26-29 January 1993, 1-5, 8-12, 15-17 and 25 February 1993, 10, 17 and 31 March 1993

Date of Delivery of Ruling: 31 March 1993

Date of Handing Down Ruling: 20 April 1993

 

____________

RULING

____________

 

1. On the 31st March 1993 I ordered a permanent stay of proceedings against Deacon Chiu Te-ken, (D1), the first named defendant on an indictment dated the 15th April 1992. At the same time, I dismissed an application for a stay of proceedings which had been made by the second named defendant, David Chiu Tat-cheung (D2). These are my reasons for granting the stay in respect of D1 and refusing the application of D2.

2. The applicants faced an indictment containing fourteen counts, of which eight were laid against D1 alone and six against D1 and D2 jointly. The first thirteen counts alleged conspiracy with others to commit offences against s. 19 (1) of the Theft Ordinance Cap. 210, in some cases by falsifying documents required for an accounting purpose and in others by producing or making use of documents required for an accounting purpose, knowing them to be false or deceptive in a material particular. Count 14, against D1, alleged that he with others conspired to defraud the Commissioner of Banking by dishonestly milking false representations concerning companies to which the Far East Bank Limited (of which he was the Chairman), had made advances.

3. The applicants relied upon the contention that their trial would at common law constitute an abuse of process by reason of prejudice caused by delay and also upon the ground that they had been deprived of their right to a trial without undue delay in terms of Article 11(2) of the Bill of Rights Ordinance (BOR) and of their right to a fair trial in terms of Article 10, BOR. It-was claimed that during the delay D1 had developed dementia and that as a result he would not be able to make full answer and defence to the charges.

4. To a layman, the use of the word "dementia" suggests that the person being described is mad or crazed. The word is not used in that sense here. It simply means acquired deterioration of intellectual function, which can be manifested in something like increased forgetfulness or absentmindedness at one end of the scale and virtually a vegetable state at the other.

5. The earliest date mentioned in the indictment appeared in count one, which was laid against both applicants. It was alleged that the period of the conspiracy the subject of that count was between the 1st December 1983 and 15th February 1984. Count 11 alleged a conspiracy between both applicants and others on or about the 29th January 1985, the latest date with which D2 was concerned. Count 14, against D1 referred to an alleged conspiracy on 30th November 1985. The story, however, goes back to November 1982 when certain relevant credit facilities were first granted.

6. D1 was arrested on' 31st October 1988 and D2 on 2nd February 1989. Their trial was due to begin on 19th April 1993, about ten and a half years after the first events about which evidence was likely to be given, more than four years and five months after the arrest of D1 and more than four years and two months after the arrest and charge of D2.

7. Estimates of the probable length of the trial varied from three to six months. There were at least 114 witnesses to be called for the prosecution. For the purposes of the committal, 1,667 pages of witness statements were served, together with copies of 3,632 documentary exhibits running to 11,997 pages. For the purposes of the trial, the prosecution produced a core bundle of 1,667 pages of witness statements and another core bundle of 2,301 pages of those copy documentary exhibits to which the prosecution expected to refer during the trial.

8. On the 10th March 1993, 261 pages of additional witness statements and 1,472 pages of further copy exhibits were served by the prosecution, some five weeks before the date on which the trial was due to begin and after closing submissions in this application.

9. The prosecution indicated during the hearing that it intends to apply for Letters of Request for the purpose of taking evidence in Canada from Mr. Raymond Lee, a person regarded as an important witness by prosecution and defence. So even at that very late stage, the applicants did not know whether he would be called or what, if he were called, he might be expected to say.

10. This court has power at common law to stay proceedings in order to prevent an abuse of its process. In delivering the judgment of the Divisional Court in Reg. v. Derby Crown Court ex parte Brooks (1984) 80 Cr.App.R. 164 at page 169, Sir Roger Ormrod said:

"In our judgment, bearing in mind Viscount Dilhorne's warning in Director of Public Prosecutions v. Humphreys [1977] A.C. 1. 26, that this power to stop a prosecution should only he used 鈥榠n most exceptional circumstances鈥 ... the effect of these cases can be summarised in this way. The power to stop a prosecution arises only when it is an abuse of the process of the court ... It may be an abuse of process if either (a) the prosecution have manipulated or abused the process of the court so as to deprive the defendant of a protection provided by the law or to take unfair advantage of a technicality, or (b) on the balance of probability the defendant has been or will be prejudiced in the preparation or conduct of his defence by delay on the part of the prosecution which is unjustifiable: for example hot due to the complexity of the inquiry and preparation of the prosecution case, or to the action of the defendant and his co-accused, or to genuine difficulty in effecting service 鈥 The ultimate objective of this discretionary power is to ensure that there should be a fair trial according to law, which involves fairness both to the defendant and to the prosecution for, as Lord Diplock said in R. v. Sang [1980] A.C. 402, 437:

'the fairness of a trial 鈥 is not all one-sided: it requires that those who are undoubtedly guilty should be convicted as well as that those about whose guilt there is any reasonable doubt should be acquitted.'"

11. That passage was cited with approval by the English Court of Appeal: in Attorney General鈥檚 Reference (No. 1 of 1990) [1992] 1 WLR 9 but Lord. Lane C.J., in delivering the judgment of the Court of Appeal said:

"stays imposed on the grounds of delay or for any other reason should only be employed in exceptional circumstances. If they were to become a matter of routine, it would be only a short time before the public, understandably, viewed the process with suspicion and mistrust"

He went on to say, a little later:

鈥淚n principle, therefore, even when the delay can be said to be unjustifiable, the imposition of a permanent stay should be the exception rather than the rule. Still more rare should be cases where a stay can properly be imposed in the absence of any fault on the part of the complainant or prosecution. Delay due merely to the complexity of the case or contributed to by the actions of the defendant himself should never be the foundation for a stay."

Lord Lane went on to say:

鈥溾 no stay should be imposed unless the defendant snows on the balance of probabilities that owing to the delay he will suffer serious prejudice to the extent that no fair trial can be held: in other words, that the continuance of the prosecution amounts to a misuse of the process of the court. In assessing whether there is likely to be prejudice and if so whether it can properly be described as serious, the following matters should be borne in mind: first, the power of the judge at common law, and under the Police and Criminal Evidence Act 1984 to regulate the admissibility of evidence; secondly the trial process itself, which should ensure that all relevant factual issues arising from delay will be placed before the jury as part of the evidence for their consideration, together with the powers of the judge to give appropriate directions to the directions to the jury before they consider their verdict."

12. There is in Hong, Kong no equivalent to the Police and Criminal Evidence Act but the above remarks are otherwise applicable to trials in this jurisdiction and they have been approved by the Judicial Committee of the Privy Council in George Tan Soon Gin v. Judge Cameron and Another [1992] 3 WLR 249 and the recent case of The Attorney General of Hong Kong v. Charles Cheung Wai-bun, Privy Council Appeal No. 56 of 1992. Lord Mustill, in the George Tan case said this:

鈥淣aturally, the longer the delay the more likely it will be that the prosecution is at fault, and that the delay has caused prejudice to the defendant, and the less than the prosecution has to offer by explanation, the more easily can fault be inferred. But the establishment of these facts is only one step on the way to a consideration of whether, in all the circumstances, the situation created by the delay, is such as to make it an unfair employment of the powers of the court any longer to hold the defendant to account. This is a question to be considered in the round, and nothing is gained by the introduction of shifting burdens of proof, which serves only to break down into formal steps what is in reality a single appreciation of what is or is not unfair.鈥

13. Mr. Caplan on behalf of D2 asserted that those remarks indicate that an applicant for a stay bears no burden of proof at all. Lord Mustill, however, also said:

鈥溾 the district judge was in fact was in fact correct to take into account all the factors together, without reference to any burden of proof other than the heavy burden which always rests on a defendant who seeks a stay on the grounds of delay.鈥

14. I have no doubt that it is for the applicants for a stay to show on the balance of probabilities that owing to the delay they will suffer serious prejudice to the extent that no fair trial can be held. In the Charles Cheung case it was said that Duffy J. had correctly set out the test as follows:

鈥淯ltimately what has to be determined is whether proceedings can be fair, and it is for the defendant, if he is to succeed, to establish on the balance of probabilities that they cannot be fair."

15. In Jago v. the District Court of New South Wales and Others [1989] 168 C.I.R. 23, the High Court of Australia considered the circumstances in which the power to stay criminal proceedings may be exercised. Deane J., in his judgment at pp.60 and 61 set out five main heads of relevant circumstances and considerations where the ground of the application is that the effect of delay on the part of the prosecution is that any trial will necessarily be an unfair one. The five heads are:

(i) the length of the delay;

(ii) reasons given by the prosecution to explain or justify the delay;

(iii) the accused鈥檚 responsibility for and past attitude to the delay;

(iv) proven or likely prejudice to the accused;

(v) the public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime.

Deane J. said:

鈥淭hese five heads provide convenient reference points for answering the question whether the effect of a delay in a particular case is such as to bring about a situation where any trial will necessarily be an unfair one from the accused's point of view or a situation where the continuation of proceedings would be so unfairly oppressive that it would constitute an abuse of process. They should not, however, be treated as a code or be permitted to divert attention from the fact that what will ordinarily be involved in answering that question is the formation of a value judgment in the context of the nature and seriousness of the alleged offence and having regard to all other relevant circumstances.鈥

16. Those remarks have found favour with the Divisional Court in England (see R. v. Crown Court at Norwich, Ex part Belsham (1992) 94 Cr.App.R. 382 at p.393). Deane J. went on to say:

"Consideration of heads (i) (length of delay) and (ii) prosecution鈥檚 explanation) will involve account being taken of the time when relevant material was first known to the authorities and whether the charge is a complex or simple one. It will also involve consideration of what is reasonable in the context of the limitations of institutional resources (cf. Mills v. The Queen [1986] 1 SCR at pp. 924-925; Aboud v. Attorney General (N.S.W.) (1987) 10 NSWLR at pp. 683-684). Consideration of head (iv) (prejudice to the accused) will involve account being taken of the availability of other discretionary powers to mitigate the effects of delay. Consideration of head (v) (public interest) will require that account be taken of the fact that the primary responsibility for determining whether criminal proceedings should be maintained lies with the executive and not with the courts 鈥"

17. Every application for it stay must be decided on its own facts. That has several times been stated emphatically by appellate courts and, at page five of the judgment of their Lordships in Charles Cheung, Lord Woolf said:

鈥淭he judge in his initial ruling stated that he was "not insensitive to the predicament of the prosecution" and that his "decision was taken purely on the particular merits of this Defendants's case鈥. He concluded his reasons by describing the case as being 鈥渆xceptional鈥 although he saw the balance as coming "down heavily on the defendant鈥檚 side鈥. By these remarks he was presumably indicating, correctly in their Lordships' view, that this is very much a case on its own facts the, decision on which should not be taken as a precedent in other cases. While there was no prospect of the appeal succeeding, the fact that their Lordships are of the opinion that the appeal ought to be dismissed should not be regarded as an indication that, in the ordinary way, in the absence of exceptional circumstances, the time scales of the order of those under consideration will result in prosecutions of fraud being stayed."

18. So far as the common law is concerned, Duffy J. in Charles Cheung, after referring to Jago; Norwich Crown Court Ex parte Belsham; Attorney General鈥檚 Reference No. 1 and a number of earlier cases on delay and stay of execution, said:

鈥淚t seems to me, therefore, that I should take into account the length of' the delay, the reasons for the delay, the conduct of the parties, prejudice to the Defendant and the public interest as factors to be considered in the determination of this issue. There are the important factors whether I am dealing with a common law abuse or an infringement of rights under the Bill.鈥 (Here he was referring to the BOR.) 鈥淚 must conduct a balancing exercise in which all of these factors and all other related circumstances are weighed, in order to determine whether in this case a stay of the proceedings should be ordered.鈥

That is the approach which I have adopted.

19. Turning to the BOR aspect of the case, Duffy J. traced the-history and origin of the BOR and referred to R. v. Sin Yau-ming, (1992) HKCLR 127. In that case, Silke V-P said at page 141,

鈥淲hile this court is, in effect, required to make new Hong Kong Law relating to the manner of interpretation of the Hong Kong Bill" (the BOR) "and consequentially the tests to be applied to those laws now existing and, when asked, those laws yet to be enacted, we are not without guidance in our task. This can be derived from decisions taken in common law jurisdictions which contain a constitutionally entrenched Bill of Rights. He can also be guided by decisions of the European Court of Human Rights 鈥 鈥楾he European Court' - and the European Human Rights Commission 鈥 鈥楾he Commission鈥. Further, we can bear in mind the comments and decisions of the United Nations Human Rights Committee - 'The Committee'. I would hold none of these to be binding on us though insofar as they reflect the interpretation of article in the Covenant, and are directly related to Hong Kong legislation, I would consider them as of the greatest assistance and give to them considerable weight.鈥

Before leaving the report, I note that later  under the same heading Silke V-P said that:

"Overall, it must be borne in mind that the Hong Kong Bill is not a mere, collection of pious platitudes or hopeful aspirations; It is the law."

Duffy J. in Charles Cheung cited the words of La Forest J in Rahey v. The Queen [1987] 33 C.C.C. (3d) 289 at 325 as follows:

"While it is natural and even desirable for Canadian Courts to defer-to American constitutional jurisprudence in seeking to elucidate the meaning of charter guarantees that have counterparts in the United States Constitution, they should be warned of drawing too ready parallel between constitutions born to different countries in different ages, and in very different circumstances."

He also referred to the principle to be derived from Bell v. DPP (1985) 1 AC 937 and Mungroo v. R. (1991) 1 WLR 1351 that 鈥渢he delay must also be considered in the context of the prevailing economic, social and cultural conditions to be found in the country concerned.鈥

20. In the light of these passages, Duffy J. took the view, with which I respectfully agree, that "when we come, as I do, to apply an interpretation of Articles which bear upon questions of fairness or the meaning of expressions such as 鈥渦ndue delay鈥, in relation to the conduct of criminal proceedings, the American, and the Canadian, and the European experiences, while they may assist to some extent in the formulation of principle, cannot be allowed to dictate norms which are largely influenced by local cultural, social and economic factors. "

21. The relevant parts of the Articles of the BOR which fall for consideration are in the following terms:

鈥10. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rignts and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

11. (2) In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality.

鈥.

(c) to be tried without undue delay.

鈥.鈥

Section 6(1) of the BOR refers to remedies for contravention of rights under that ordinance as follows:

鈥淎 court or tribunal -

(a) in proceedings within its jurisdiction in an action for breach of this Ordinance; and

(b) in other proceedings within its jurisdiction in which a violation and threatened violation of the Bill of Rights is relevant,

may grant such remedy or relief, or make such order, in respect of such a breach, violation or threatened violation as it has power to grant or make in those proceedings and as it considers appropriate or just in the circumstances."

22. So where an accused person anticipates a breach of his right under Article 11(2)(c) to be tried without undue delay, or has already suffered such an infringement, the court can make such order as it may have the power to make in order to give a remedy. In the present case, it was common ground between the parties and I was satisfied that the only appropriate remedy, if one was required, was a stay. No new remedies are provided by the BOR.

23. Duffy J., reviewing a number of judgments in the United States of America, Canada and the European Court, 'took the view; with which I agree, that courts concerned with constitutional provisions identical to Article 10 and 11 have identified relevant factors similar to those found appropriate by the common law courts. He said, repeating the words he had used in an earlier judgment:

"Not unnaturally, as between the jurisdictions there is a variety of treatments given to those factors but, all in all, very similar considerations are applied to the reasonableness of a delay whether that be in the context of alleged abuse of process or of an alleged infringement of a constitutional right."

Before the BOR was enacted on the 8th June 1991, the right of an accused person to a fair trial was recognised and protected. Where delay in bringing an accused person to trial produced a situation in which a fair trial was no longer possible, so that the proceedings would be an abuse of process, then a stay of proceedings would be granted. That remains the position but in addition we now have Articles 10 and 11.

24. It may be that it is not strictly correct to say that Article 10 is merely declaratory of the common law right to a fair and public hearing, as Deputy Judge Jones put it in R. v. Egan, High Court Criminal Case No. 280/3 of 1991 (unreported). Its purpose is to incorporate into domestic law the provisions of the International Covenant on Civil and Political Rights (s.2(3) BOR) but in practical terms its effect is to affirm the right and the Hong Kong courts, in construing the word 鈥渇air鈥 (and other expressions in the BOR) will follow the guidelines for interpretation set out in R. v. Sin Yau-ming (1992) 1 HKLR 127. In his judgment in that case, Silke, V-P said; at p.141:

鈥淚n my judgment, the glass through which we view the interpretation of the Hong Kong Bill is a glass provided by the Covenant. We are no longer guided by the ordinary canons of construction of statutes nor with the dicta of the common law inherent in our training.鈥

25. It is the respondent's case that Article 11(2)(c) adds nothing to the rights which previously existed at common law. It has been argued on behalf of the applicants that that article confers an independent right which is to be protected on wider grounds than the Common Law provides. See Barker v. Wingo, US Supreme Court Report 33L Ed. 2d 101; Mills v. R. (1986) 26 CCC (3d) 481. The equivalent provisions in the USA and Canada are entrenched constitutional provisions whereas the BOR is not entrenched in the usual sense. The Court of Appeal says that it is sui generis - R. v. Sin Yau-ming at p. 139 - but that we can derive assistance in interpreting it from common law jurisdictions where there are constitutionally entrenched Bills of Rights, as well as from decisions of the European Court of Human Rights, the Human Rights Commission and the comments and decision of the United Nations Human Rights Committee, bearing in mind the aims expressed in the Covenant itself. The common law looks at delay in the context of its effect upon the right to a fair trial. The BOR may be regarded as having conferred a separate and independent right not only to be tried fairly but also, even if the trial itself will be fair, to be tried without undue delay. The remedy, however, for undue delay where a fair trial is possible, is likely to be an order designed to expedite the trial.

26. The Judicial Committee of the Privy Council in Charles Cheung refrained from deciding whether there is a material distinction between the approach at Common Law and under the Bill of Rights, though recognising that it was possible to argue that there was a difference. In the present case, any distinction there may be between rights at common law and those under the BOR made no difference to the result. A decision whether to grant a stay must be the result of a value judgment based on a wide variety of undue delay is not an absolute right: but a violation of that right is an important factor to be considered in an application for a stay if Article 11(2)(c) is to be anything more than a "pious platitude".

27. There has been evidence from D2 of personal and business disadvantages which he and D1 have encountered and which he ascribes to the existence of the charges. I have taken those matters into account as part of the circumstances to be considered when looking at the post-charge delay period in relation to Article 11(2)(c). As Duffy, J. observed in Charles Cheung when speaking of the time when an individual is charged.

鈥溾 it is surely at least from that time that a suspect, who eventually goes to trial, begins to feel the pressure and strain that is experienced by all those who face the wait for trial on criminal charges, and his personal, family, social and business circumstances begin to be affected.鈥

This reflects the view, expressed in Barker v. Wingo and R. v. Mills (supra) that delay affects not only the fairness of the 'trial but also the citizents right to liberty and the security of the person. Lamer J. in Mills referred to "stigmatization of the accused, loss of privacy stress and anxiety resulting from a multitude of factors, including possible disruption of family, social life and work, legal costs, uncertainty as to the outcome and sanction.鈥

28. As Powell J., said in Barker v. Wingo (supra) at p.118:

鈥淧rejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests" (i) to prevent oppressive pre-trial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.鈥

Later, on the same page he said:

鈥淔inally, even if an accused is not incarcerated prior to trial, he is still disadvantaged by restraints cm his liberty and by living under a cloud of anxiety, suspicion, and often hostility."

See also R. v. Askoy 59 C.C.C. (3d), where this topic is discussed.

The case for the applicants was that there had been undue delay, including deliberate delay in the investigation of the case and undue delay after the applicants had been charged, both in completing the investigation and in preparing the case for committal. Complaint was made that the applicants had been led by the commissioner of Banking to believe that if they paid off the loans which had attracted his attention, they would hear no more about the matter. They had accordingly done nothing for a long time to prepare a defence and D2鈥檚 diaries for the relevant period had been thrown away, so that he was deprived of an aid to memory about matters long past. It was submitted that prejudice was to be inferred from the long delay between the events the subject of the indictment and the trial. Imemories were bound to be affected. In the interval, important witnesses had died or were missing. In the case of D1 it was alleged that he had suffered actual prejudice in that during the extended delay he had suffered a deterioration in his intellectual function, especially the memory function so that his ability to make full answer and defence was prejudiced. In addition, there would be a risk to his health if he had to undergo the ordeal of a six month trial. It was also suggested that there had been no loss to anyone but the Chiu family and no public scandal; the banking environment had charged since the early 1980s and there was no legal precedent to be set by the trial, so that there was not a strong public interest in the continuation of the proceedings.

29. I now turn to consider the circumstances of this particular case.

30. The nature of the allegations against the applicants and the nature and volume of the evidence are material factors. I have already indicated the number of witnesses who were to be called for the prosecution as well as the volume of their statement and of the documentary exhibits. No facts were admitted under section 65C of the Criminal Procedure Ordinance and the prosecution was to be put to strict proof. In the circumstances, an estimate of six months for the trial did not appear to be excessive.

31. I studied the committal papers and additional evidence in order to assess the extent to which delay was likely to affect the conduct of the trial if it took place between April and October this year.

32. It was the prosecution鈥檚 intention to prove by reference to very many documents that money was obtained from the Far East Bank for the benefit of the Chiu family. D1 was chairman of that bank and D2 was a director. It was alleged that in order to conceal the true facts, the applicants with others conspired to create an elaborate system of records which suggested that the money had gone in bona fide transactions to genuine customers of the bank.

33. Much of the prosecution's case: depended upon documents. Mann L.J. said in R. v. Telford Justices ex. p. Badham (1991) 2 QB 78, 90):

鈥淎s in the case of delay, we think the onus will normally be on the accused to show that on the balance of probability a fair trial is now impossible . How the accused is to discharge the onus upon him must depend on all the circumstances of the case. Thus, he may find his task more difficult in a case wholly dependent on contemporary and available documents than he would in a case such as is the present which is dependent wholly upon a late complaint and oral testimony. As in the case of delay, we also think that where the lapse of time is a long one, it may be inferred that a fair trial is no longer possible. Whether it is legitimate to draw the inference will depend on the circumstances of the case. Thus it may not readily be drawn where the prosecution is wholly dependent on available documents.鈥

34. In R. v. Bow Street Stipendiary Magistrate ex. p. DPP (transcript Co/1454/91: 24th January 1992) at p. 14 Neill I,.J. said:

"In a case involving delay, the court will consider the reasons for the delay and the responsibility, if any, of either the prosecution or the defence for the delay. The court will also consider the issues which are likely to arise at the hearing and the nature of the evidence which is likely to be relevant. This is a case which depends very largely on documentary evidence may be regarded very differently from one where witnesses will have to try to recollect some swiftly moving event which passed before their eyes years ago. "

35. A great deal of the prosecution's case against the applicants depended upon documents but oral evidence would have been essential as to the roles of the alleged conspirators and as to conversations upon which the prosecution would seek to rely.

36. I must now look at the various factors which fall to be considered in a case where the applicant relies upon delay.

A. The Length of the Delay

37. It was in November 1982 when the first 鈥渙ffering ticket鈥 was signed in relation to one of the relevant loan facilities.

38. The period covered by the indictment is between the 1st December 1983 and the 30th November 1985. It was in early 1985 that the problem loans came to light in a routine inspection of the bank by an officer of the Commissioner of Banking and discussions began with the Chius.

39. It was only on the 13th January 1986 that the Commissioner of Banking officially referred the matter to the Attorney General's Chambers. As a result of that referral, an investigation by the Independent Commission Against Corruption (ICAC) began on the 29th January 1986. Two years and nine months after that, on the 31st October 1988, D1 was charged. D2 was interview and arrested on the 2nd February 1989. He was charged on the 9th February.

40. Fourteen a half months elapsed between 31st October 1988 when D1 was charged and the 17th January 1990, the return date fixed for a committal hearing in the magistrates鈥 court.

41. There then began a series of hearings relating to an application for a stay, which led to the High Court, the Court of Appeal, the Privy Council and back to the magistrates鈥 court by the 6th January 1992. As a result of the application and the proceedings which flowed from it, the committal for trial was delayed by over two years. It finally took place on the 4th of April 1992. An indictment was filed on the 15th April 1992 and the trial was eventually set down for the 19th of April 1993.

42. There was much discussion as to the selection of appropriate dates to represent the beginning and end of the delay period. It was common ground that for the purposes of Article 11(2) the period begins with the 'charge', which word has been defined in various ways in different jurisdictions.

43. Duffy J. in Charles Cheung, after reviewing Canadian and European decisions, took the view that the word 鈥榗harge鈥 鈥渟hould relate to the time at which an individual is officially advised by a competent authority that he is suspected of having committed a criminal offence, for it is surely at least from that time that a suspect, who eventually goes to trial, begins to feel the pressure and strain that is experienced by all who face the wait for trial on criminal charges, and his personal, family, social and business circumstances begin to be affected.鈥

44. It was common ground that post-charge delay is to be viewed against the background of pre-charge delay. As Sopinka J. said in R. v. Morin 71 CCC (3d) at p.15:

Pre-charge delay may in certain circumstances have an influence on the overall determination as to whether post-charge delay is unreasonable but of itself is it not counted in determining the length of the delay."

45. Lamer, J. in Mills v. R. (1986) 26 CCC (3d) 481 at p. 558 said:

鈥淧re-charge delay is relevant, however, to the right to a fair trial protected by sections 7 and 11(d) of the Charter ... Pre-charge delay is relevant under sections 7 and 11(d) because it is not the length of the delay which matters but rather the effect of the delay upon the fairness of the trial. Pre-charge delay is as relevant is any other form of pre-charge or post-charge conduct which has a: bearing on the fairness of the trial.鈥

46. In considering Article 11 (2), I was looking at a period of almost four years and six months between the formal charging of D1 and the beginning of his trial but against the background of some six years having elapsed from November 1982, when the story may be said to begin, to the 31st October 1988 when D1 was charged. The period in relation to D2 is overall the same, save that he was arrested on the 2nd February 1989 and formally charged on the 9th. Mr. Scrivener would say that the post-charge period might well be longer, if we were to take the date of the execution of search warrants on the 31st May 1988 as the date when D1 was officially advised by a competent authority that he was suspected of having committed a criminal offence. I have taken the charge dates as being 31st October 1988 and 9th February 1989.

47. Bearing in mind my duty to look at all the circumstances together, I considered that there was little if anything to be gained by trying to express the problem in terms of a mathematical formula. My task was to look at matters in the round and form a value judgment.

48. I have referred to the date on which the trial was scheduled to begin, but I bore in mind that it was estimated to last six months and it must be a fair trial throughout, so that the period up to the end of the trial must be considered. It: would only have been at a late stage, if at all, that the applicants might have found themselves in the witness box. If D1 were to have given evidence in October 1993, it would have been almost eleven years after the beginning of the story and five years after the date upon which he was charged.

49. There was an argument as to whether certain periods of delay should be ascribed to the actions of the applicants and, if so, whether such periods should be disregarded for the purpose of assessing the length of the delay. I shall come to that matter in due course.

B. The Reasons given by the prosecution to explain or justify the delay.

50. Mr. Pethes accepted that the period of almost four years from the 29th January 1986 to the 17th January 1990 is the responsibility of the prosecution. He said that the period falls into two parts:

(a) Two years and nine months from the start of the ICAC investigation up to the charging of D1 on the 31st October 1988 and

(b) the 14? months of continuing investigation between the charging of D1 and the return day of 17th January 1990.

51. However, the Commissioner of Banking became aware of irregularities and apparent breaches of the Banking Ordinance in early 1985. He chose for his own reasons not to make a formal reference to the Attorney General until the 13th January 1986. Had he brought in the police or the ICAC at an earlier stage, it is reasonable to assume that the investigation would have been completed sooner.

52. Mr. Pethes submitted that the two periods of delay (a) and (b) above, must be looked at in the context of how the investigation began, its size and complexity, and the resources available to the ICAC. So far as resources are concerned, it was pointed out on behalf of D1 that there was no evidence on the matter and accordingly, a lack of resources was not something upon which the prosecution could rely.

How the ICAC investigation began

53. A letter dated the 13th January 1986, to the Attorney General's Chambers from the Commissioner of Banking, signed on his behalf by R.H. Farrant, begins as follows:

"Our investigations into Far East Bank last year identified a number of transactions of doubtful legality. We think they seem to merit further investigation with a view to possible prosecutions under the Banking Ordinance.鈥

54. The letter refers to various matters including some transactions, the subject of the present indictment and it states:

"All of these transactions have been summarized in the enclosed reports by Touche Ross & Co. prepared for shareholders and drawing on work done by our examiners and former auditors, Price Waterhouse; and Price Waterhouse, prepared for us. There are many other working papers of our examiners available if you wish."

55. The final paragraph reads:

"At present the Chius are in the final stages of negotiation with third parties to sell a substantial stake of the bank, using the proceeds to settle the debts described above. These should be completed by the end of January. We would not wish these negotiations prejudiced by adverse publicity, although the purchasers are aware that the police investigation of possible illegalities are (sic) likely and prosecution of the Chius and perhaps other senior staff could ensue."

56. It was established by the evidence of Mr. Fell, who was Commissioner of Banking at the time, and by the evidence of Mr. Swift, the ICAC officer who had charge of the investigation, that the Commissioner of Banking recommended a covert investigation. This was because of the 鈥榟igh profile鈥 of the Chiu family and because if the investigation became public knowledge the Far East Bank was likely to collapse, to the detriment of its depositors and shareholders, and there was potential damage to the Far East Group of companies controlled by the Chius. Loans of about $350,000,000.00 to the 'special companies' were secured by shares in the Far East group of companies. If the loans were not repaid, the companies and the bank would collapse. In the opinion of Mr. Robert Fell, the banking system of Hong Kong, which had recently been shaken by other collapses, I could not stand another one.

57. When he gave evidence, Mr. Fell put the matter in historical perspective. There had been a crash in the property market in 1983 which had impinged on the banking system and there had been a number of failures of deposit-taking banks. He said that in 1983 there was almost a crisis in the financial sector. Two of the banks which collapsed were taken into government ownership. After that, there were indications from the Financial Secretary and a senior member of the Legislative Council that it was unlikely that there would be any more such rescues. The policy was to try to keep banks afloat and to find new owners for them.

58. When he heard of the loans to the $2 companies by the Far East Bank, his prime concern was to get them regularised. It is common ground that loans of $350 million by the bank which had about $160 million paid up capital, if they were connected, indicated a massive breach of the Banking Ordinance.

59. It is part of the prosecution's case that it was discovered that of the loans to the nine alleged Indonesian customers, three exceeded the 25% limit of the Far East Bank's paid up capital and reserves imposed by section 23 of the Banking Ordinance then in force. In addition, the prosecution alleges that a loan to a wholly owned subsidiary of the bank exceeded the 10% limit imposed by section 24.

60. The prescribed penalty for a director or manager of a bank which contravened section 23 or section 24 was, upon conviction on indictment, a fine of $200, 000.00 and imprisonment for two years and, in the case of a continuing offence, a further fine of $10,000.00 for every day during which the offence continued.

61. Mr. Fell said in evidence:

鈥溾 obviously our first business was to encourage the Chius to get the bank on its feet again. Now if the Chius had been threatened immediately with legal action, their reaction quite clearly would have been quite different. They would have immediately taken legal advice, stopped presumably the payment of the loans. We would have had a collapsed bank.鈥 鈥. 鈥淲e couldn鈥檛 stand a failed bank at that time鈥 鈥. 鈥淚t鈥檚 very, very difficult to get that point across at this point of time. But the point we were concerned with then, from that period roughly 鈥83, 鈥85 was very much the financial stability of Hong Kong that had started with the property crash, just coming at the time of the Chinese negotiations starting.鈥

62. The Chius agreed to repay the outstanding loans. There was a repayment schedule drawn up by Dick Chiu in May 1985. It was eventually embodied in a deed which was executed a year later. Mr. Fell made it clear to the Attorney General鈥檚 Chamber and to the ICAC that, as he put it:

鈥淚f obviously prosecution and the sort of publicity of that sort of investigation had come at that stage, it would have meant the complete failure of what we were trying to do. Two things would have happened. First of all; any possible purchasers would have obviously cried off; and secondly we wouldn't why should the Chius then ~av.e1' honoured their agreement if they were immediately being prosecuted. In other words, the thing would have come to a halt and we would have been back to square one again. It was a failed bank on our hands.鈥

63. The Attorney General and the ICAC in accordance with Mr. Fell's recommendation took the view that there should be a covert investigation. This limitation on the investiqators undoubtedly caused delay.

64. The covert approach, as Mr. Pethes acknowledged, slowed down the investigation from the outset throughout 1986 and in 1987. Not only was Mr. Fell recommending caution but so also was Mr. Louvet of IBI Asia, which took over the chius鈥 interest in the Far East Bank. He wanted the bank to "get back on its feet after the takeover鈥 and it is clear from Mr. Fell's evidence that Mr. Louvet was given certain indications that there would be cooperation from the Commissioner of Banking if IBI did take over, and that no action would be taken against the bank in relation to the loans.

65. A point was made by the applicants that the investigation only became overt at a time when the repayments scheduled in the Deed of Repayment had nearly all been made and D1 was only arrested after all of them had been made. Mr. Pethes said that there was no evidence of any connection between the two matters and that the Chius had already put in fresh security to secure the loans so that even if the schedule had not been met, the security could have been enforced. I consider that it would be naive, in the light of the remarks of Mr. Fell which I have quoted above, to suppose that there was no connection. Mr. Swift agreed in evidence that when he interviewed D1 he indicated that he was aware of the repayments and it so appears from page 11 of the record of interview of the 31st October 1988.

66. The repayment schedule shows that the final payment was made on the 31st August 1988, two months before D1 was interviewed and arrested. Decisions were being made at a level higher than that of Mr. Swift and they were clearly informed by 鈥減olicy鈥 considerations.

67. Another reason advanced by the respondent for the delay in the investigation was that the al1eged beneficiaries of questioned loans were allegedly Indonesians residing in Indonesia, so that it was not easy to make enquiries.

68. The obtaining of documentary evidence was hampered and slowed down by the covert approach. By June 1987, Mr. Swift wanted to carry out searches for documents, but a suggestion by the Attorney General's Chambers that there be a covert fund tracing exercise first was accepted by Mr. Swift's superior in ICAC. Though he did not think it necessary at the time, Mr. Swift now considers that the decision to trace the funds was correct. Perhaps it was but no good reason has been shown for delaying at that time the searches for documents which must, have speeded up the fund tracing process.

69. It is said by Mr. Pethes, that the fund tracing was hampered by the fact that the bank had only one microfiche reading machine. I have no doubt that if the accountants and ICAC had been able to make an overt examination of the bank鈥檚 records, the investigation must have moved on much more swiftly. It is understandable that Mr. Louvet was in no hurry to supply evidence which might eventually result in a prosecution connected with the bank he was trying to run a prosecution which he did not want. When Mr. Swift pressed him, he said that he would speak to someone high in government and Mr. Swift took him to have Mr. Fell in mind.

70. Mr. Swift thought he would be able to do his searches in October 1987, but again they had to be put off because in that month there was a stock market collapse and it was felt that searches at that time could have had a disastrous effect on the public companies controlled by the Chius. Also, the fund tracing was taking longer than had been expected.

71. Mr. Pethes pointed out that there never was any intention to search the premises of the Far East Bank. When searches did take place, they were of five places where papers relating to the Far East Group of companies were held. Mr. Swift said in evidence that it he had searched the bank he would not have known what he was looking for and a search would have closed down the bank. It seems to me, however, that an overt examination of the relevant records by ICAC and the accountants, with the cooperation of the bank must have speeded up the fund tracing exercise. I see no reason to assume that the bank would have needed to shut down or that the management of the bank would have refused to help ICAC and Ernst and Whinney to find what they were looking for.

72. On the 31st May 1988, two years and four months after the start of the ICAC investigation, searches were carried out. 20 filing cabinets  documents were sized. The investigation, now overt, proceeded more rapidly and it speeded up further after the arrest of D1 on the 31st October.

73. D2 in evidence mentioned that in 1987 following the stock market crash, the Chius injected money into the Far East Bank. There is no evidence that Mr. Swift knew that or that it had any effect on decisions made in relation to the ICAC investigation.

74. The progress of' the fund tracing exercise was slowed down partly because Ernst and Whinney had been instructed not to contact Price Waterhouse or Touche Ross. Mr. Grimsdick鈥檚 evidence was that this instruction was given in order to preserve confidentiality, i.e. to restrict the knowledge that a fund tracing exercise was going on to a small group of people. Mr. Pethes says that Price Waterhouse had not done any fund tracing. Nevertheless, what they did have, as auditors, was knowledge of the procedures of the Far East Bank and I have no doubt that if Ernst and Whinney had been able to consult them, much time and effort could have been saved, especially if there had been free and open access to the bank鈥檚 records. Price Waterhouse knew about the questioned loans and a partner was at meetings with Mr. Fell and the Chius about them. Had he been consulted he must have been able to help Ernst and Whinney.

75. In April 1988, Ernst and Whinney had largely completed their fund tracing and an interim report was rendered. The report indicated that the funds had gone to or for the benefit of the Chiu family. That led to the searches of premises and the seizing of documents in May. A detailed report was submitted by Ernst and Whinney on the 5th October 1998. That marked the end of their fund tracing exercise. D1 was arrested within the month.

76. According to the evidence, Ernst and Whinney had discovered that on one day in January 1984, a sum of $40.9 million which had come from the Far East Bank through the special companies to Spur Investments Limited was used for the purchase by Far East International Limited (FEIL), a company of the Far East Group, to purchase ATV shares. D1 had signed on behalf of FEIL the agreement to purchase those shares. The deal gave him control of ATV of which he became chairman.

77. When he was interviewed by Mr. Swift in October 1988, D1 said that he bought the ATV shares with the proceeds of a loan from the Bank of Communications. The researches of Ernst and Whinney suggested that, though the Bank of Communications had made a loan for that purpose, the money had been diverted to other purposes and was not used to buy the ATV shares.

78. After the searches were completed in May 1988, the investigation ceased to be covert. D1 was still the chairman of the bank. According to Mr. Grimsdick of Ernst and Whinney, his staff worked alongside the bank staff from February 1988, using their own microfiche reader.

79. The arrest of D1 on the 31st October 1988 accelerated the investigation. According to Mr. Swift that investigation would have been of the same length overall whether D1 had been arrested earlier or later.

80. Some idea of the scale of the investigations generally being carried out may be gained from the fact that the staff of Ernst and Whinney alone worked over 19,000 hours on them. Ernst and Whinney may properly be regarded as having been part of the investigation team and it is unrealistic to look simply at what ICAC officers were doing if the effort put into the investigation is to be assessed.

81. The arrest of D2 was delayed because Mr. Swift鈥檚 discreet attempts to arrange an interview during that period, from November 1988 to February 1989, were unsuccessful. It is not suggested by Mr. Pethes that D2 was deliberately delaying. Mr. Swift spoke to solicitors and did not contact D2 directly, though there was nothing to prevent him from doing so.

The attempts to extradite Tammie TAM

82. It is the prosecution鈥檚 case that Tammie Tam is an important figure in the alleged conspiracies. The applicant say that the course of the proceedings against the applicants was greatly delayed by reason of the fact that the prosecution obtained adjournments of the committal proceedings in the hope that they could have Tammie Tam extradited from Fiji, whither she had gone from Hong Kong in July 1988.

83. According to the respondent, the evidence of Mr. Swift indicates that a delay to the investigation of only six to eight weeks was caused by the need to prepare evidence for the extradition application. That, may be so, but the burden of the applicant鈥檚 complaint is that there was a long delay in the committal proceedings and of that I have no doubt.

84. According to the magistrate鈥檚 note, the prosecution applied on the 10th February 1989 for a remand of four months. Crown counsel, Mr. Kripas spoke of the extradition, indicating that an extradition from Fiji in April was expected and that the co-conspirator would not be back (in Hong Kong) until mid-April. Concern was then expressed by counsel for D1 at the time it was taking the Crown to bring the matter to trial. That was four years ago. Crown Counsel indicated the scale of the investigation, mentioned overseas enquiries and spoke of letters of request in respect of a key witness overseas (probably Raymond Lee, to whom I shall in due course refer). He said that the investigations were proceeding at a very satisfactory rate, but mentioned that the resources of the Crown were diluted in connection with extradition.

85. In a letter dated 15th March 1989 to D1鈥檚 solicitors, Mr. Kripas said:

鈥淭he preparation of the Crown鈥檚 case against your client has been interrupted for many months due to the need to prepare the extradition of Tammy Tam from Fiji.鈥

86. Later in the same letter he says:

"We should also place on record that as of June 1989 your client has been under arrested (sic) and charged for only 8 months and not 12 as you claim. Given that 6 of those months have been dedicated to the preparation and hearing of the extradition, this case will, if ready for a return date then, have been prepared in astonishingly quick time."

87. The return date to which Mr. Kripas referred was the 13th June 1989.

88. That date came. The prosecution sought a further adjournment until August and Mr. Reid who appeared for the prosecution said:

鈥淭he preparation of the case papers has been delayed by extradition proceedings of named co-defendant, a co-conspirator fighting extradition from Fiji 鈥 Great time and effort gone into this case expended on Fiji extradition. That case due to be heard 25/26 July in Fiji.鈥

89. Mr. Reid said that he appreciated the need for the Crown to get on and finalise the committal papers and charges and he added:

鈥淒elay partly reflexive of complexity of case, compounded by the enormous amount of time and effort in Fiji extradition.鈥

90. Counsel for the defence described the situation as oppressive, pointing out that after 8 months following his arrest, D1 still only faced holding charges. He said that when charges were not formally laid, it was impossible for the defendant to focus meaningfully on many areas. In the meantime, he said, lay witnesses became unavailable. The statement by the Crown in a letter in March, that many witnesses had emigrated, was mentioned. Counsel said that any further application for an adjournment would be strenuously opposed.

91. So three years and nine months ago the prosecution was left in no doubt that the defence was alleging that its conduct was oppressive.

92. The next appearance before magistrate was on the 29th August 1989. The prosecution, which by then had served a large number of documents on the defence, produced a schedule of 14 charges and asked for a remand to the 17th January 1990 for a return date. Counsel appearing for the prosecution said that the charges could be put and the cases against D1 and D2 consolidated on the 17th January 1990. He said that the papers were not yet in committal form and he undertook that the papers would all be in order - in committal form - by the end of November 1989.

93. It is a serious matter to give an undertaking in the course of an application for an adjournment. The undertaking was not honoured. The papers for committal were in the hands of the defence by January 1990. A great many documents together with the final charges had been delivered to the defence in August 1989 and more had been supplied in September.

94. There is no doubt that the prosecution faced an enormous task in analyzing thousands of documents and taking statements from many witnesses. It is clear that resources were substantially diverted to deal with the attempt at extradition. Unfortunately, due to an error on the part of the Crown, the first set of extradition proceedings proved abortive and the Crown had to start all over again. To this day the matter is still being fought out and there is no knowing when, if ever, Tammie Tam will be brought to this jurisdiction.

95. In September 1990, Mr Martin LEE Q.C. appearing for the prosecution in the Magistrates鈥 Court, said this:

鈥淚t is not the prosecution intention further to adjourn this case to obtain a joint trial with Tammy Tam鈥

The interviewing of witnesses

96. The schedule of witnesses in the defence bundle of exhibits shows that statements were taken from four witnesses up to the 6th April 1988. Between July and October, when D1 was charged, statements were taken from a further 67. Mr. Scrivener for D1 suggested that only three or four of those 67 gave any evidence other than that they had been nominees in relation to the special companies, so that not much had been done by way of statement taking before D1鈥檚 arrest. Mr. Swift, however, says that 16 of the 67 spoke of recruiting people and signing documents. 13 were involved in the letter of credit transactions. In addition, Mr. Cheng Yat Ching, for example, spoke of being recruited by D2 to be a nominee director and to sign documents on behalf of one of the applicants for letters of credit. Other witnesses gave statements relating to hire purchase matters.

97. An important prosecution witness is Thomas Chu, he is allegedly an accomplice and has been given an immunity Mr. Chu is a convicted criminal who has recently served a term of imprisonment for an offence other than those charged in the indictment.

C.    The responsibility of the accused for and their past attitude to the delay.

98. Mr. Pethes says that from the 17th January 1990 the applicants have caused delays totalling two and a half years.

99. The first period is the three months from 17th January to 17th April 1990. The defence solicitors wrote to the Attorney General's Chambers asking the prosecution to agree to an adjournment of the return date from the 17th January to 17th April, when leading counsel for the applicants would be available. The prosecution agreed and the return date was refixed for the 17th April 1990. Mr. Pethes says that notwithstanding the agreement the delay must be laid at the door of the defence because they made the request. It seems to me that in the circumstances the invitation to agree to an adjournment was not unreasonable. More papers were served on the defence after the 17th January and it may well be that the prosecution would had not. I will not hold that three month period against the defendants.

100. Next, according to Mr. Pethes, came a delay of 21 months which flowed from the application made to a magistrate on the 18th April 1990 for a stay of proceedings. It was not until the 6th January 1992 that proceedings resulting from that application were completed, the applicants having failed to obtain a stay. The events which occurred during those 21 months are summarised in the helpful chronology provided by the respondent and I set out below an extract from that chronology. It will be seen that the applicants did not drag their feet.

Chronology

18 Apr. 90

On return day, Deacon and David CHIU applied to Magistrate Peter LINE for a stay of proceedings based on abuse of process on ground of delay causing prejudice. Return day adjourned to 26 April 90 to allow defence to consider making stay application in the High Court after Committal.

26 April 90

Deacon and David CHIU appeared before Mr. Line who decided that he had jurisdiction to hear the stay application. Crown indicated it might seek judicial review of Magistrate Line鈥檚 ruling.

15 May 90

Crown did not seek judicial review of Magistrate Line鈥檚 decision. Application for stay fixed for 10 Sept. 90 on consent of all parties.

13 June 90

Deacon and David CHIU appeared before Mr. White for a 鈥榩re-trial review鈥. Crown asked for particulars of the abuse of process.

19 July 90

Deacon and David CHIU appeared before Mr. Line. Preliminary hearing for the application for a stay of proceedings

10 Sept. 90
to
17 Oct. 90

Hearing of the application for a stay of proceedings before Mr. Line (16 days).

17 Oct. 90

Decision of Mr Line refusing Deacon and David CHIU鈥檚 application for stay of proceedings. Deacon CHIU elected for preliminary inquiry. David CHIU asked for adjournment of his election. Adjourned to 5 Nov. 90 at request of Deacon and David CHIU.

5 Nov. 90

Deacon and David CHIU' s counsel appeared before Mr. Line and informed him that they will be seeking to judicially review his decision of 17 Oct. 90. David CHIU 'elected for preliminary inquiry. Mr. Line remanded Deacon and David CHIU on bail until 21 Jan. 90. Adjourned at request of Deacon and David CHIU to apply for judicial review.

7 Dec. 90

Deacon CHIU given leave by Barnett, J. to apply for judicial review of Mr. Line's decision. David CHIU given similar leave by Saied, J. Both applications for judicial review were fixed to be heard before Kaplan, J. on the 14 March 91. Adjourned at request of Deacon and David CHIU to apply for judicial review.

21 Dec. 90

Mr. Line ordered and all parties consented to vacate the date of 21 Jan. 91. Deacon and David CHIU鈥檚 bail was extended by Mr. Line to 27 March 1991

8 March 91

Deacon and David CHIU made application to Mr. Line that Mr. Line had not been validly appointed as a Magistrate. Application refused.

8 March 91

Deacon and David CHIU made application in the High Court before Nazareth, J. for Writs of habeas corpus, certiorari to quash all orders made by Mr. Line and injunction under s.21 J of Supreme Court Ordinance on the ground that Mr. Line had not been validly appointed as a Magistrate.

11 March 91

Continuation of hearing before Nazareth, J. who ordered 2 Writs of habeas corpus to be issued to be served on Mr. Line and sureties of Deacon and David CHIU.

11 March 91

Kaplan, J. was asked and he agreed to hear the habeas corpus, certiorari and injunction proceedings as a matter preliminary to the judicial review of Mr. Line's decision of 17 Oct. 90.

14 March 91

Mr. Line and the sureties for Deacon and David CHIU made returns to the two Writs of habeas corpus before Kaplan J. Hearing adjourned to 18 March 91 at the request of the Crown.

18 March 91
to
22 March 91

Hearing before Kaplan, J on the appointment of Mr. Line as a Magistrate. Date for decision fixed for 22 April 91.

19 April 91

Application by Deacon CHIU to Kaplan, J. asking for dispensation of his attendance in Court on 22 April 91 as he has just undergone a renal transplant on the 11 April 91 in Guangzhou, China Application granted.

22 April 91

Kaplan, J. delivered judgment finding, inter alia, that Mr. Line was not properly appointed as a Magistrate. He ordered the release of Deacon and David CHIU from their bail conditions, certiorari quashing Mr. Line's decision of 17 Oct. 90 and a declaration in lieu of injunction that Mr. Line was wrongly appointed. Bail money refunded to sureties and to Defendants on 29 April 91.

23 April 91

Crown filed Notice of Appeal against Kaplan, J.鈥檚 judgment. Expedited dates for hearing requested by Crown. Date set for 29 April 91.

29 April 91
to
9 May 91

The Court of Appeal heard the appeal against the decision of Kaplan, J.

14 May 91

The Court of Appeal delivered their judgment and held that Mr. Line鈥檚 original appointment as a Magistrate was proper, the Governor鈥檚 delegation of his power of appointment having been valid delegation.

15 May 91

David CHIU arrest by warrant issued by Mr. Line.

16 May 91

David CHIU appeared before Mr. Line and was released on bail of $1 million cash and surety of $1 million with no travel restrictions. Adjourned to 27 June 91 at request of David CHIU to sock leave to appeal from Privy Council.

27 May 91

All parties appeared before Kaplan, J. to fix the dates for the continuation of the judicial review of Mr. Line's decision not to grant the stay of proceedings. The hearing fixed for the 2 Oct. 91 to the 8 Oct. 91 as no earlier dates available before Kaplan, J. or any other Judge of the High Court.

3 June 91

Deacon and David CHIU applied to the Court of Appeal for leave to appeal to Privy Council. Leave refused.

27 June 91

Deacon and David CHIU appeared before Mr. Line and was remanded on bail until 31 Oct. 91. Adjourned at request of both parties.

22 July 91

The Privy Council refused to grant special leave to appeal to Deacon and David CHIU.

2 Oct. 91
3 Oct. 91
7 Oct. 91 to
11 Oct. 91
and
10 Dec. 91

Hearing of judicial review before Mr. J. Kaplan of Mr. Line's decision not to grant a stay of proceedings.

6 Jan. 92

Decision of Kaplan J. dismissing Deacon and David CHIU's application for judicial review.

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