HKSAR v. CHEN KEEN (alias JACK CHEN) AND OTHERS

HKSAR v. CHEN KEEN (alias JACK CHEN) AND OTHERS

The judge held the defence failed to establish on the balance of probabilities that a fair trial is impossible or that continuation would constitute an abuse of process; remedial measures (ordering prosecution to call or tender two witnesses, providing prior transcripts to witnesses, use of MLA) mitigate prejudice from delay and memory loss; previous detailed analysis by DHCJ Bruce supporting retrial fairness was persuasive; therefore stay refused.

Citation
[2023] HKCFI 1719
Parties
Prosecution: HKSAR; 1st Accused: CHEN Keen (alias Jack CHEN); 2nd Accused: HAO May (formerly WANG May Yan; alias May WANG); 3rd Accused: YEE Wenjye (also known as YU Wenjie; alias Eric YEE)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
29 June 2023
Case Number
HCCC309/2019
Procedural Posture
Criminal Application for Permanent Stay Following Aborted Retrial / Pre Trial (application for Permanent Stay) Ruling Refusing Stay
Outcome
Application for permanent stay refused.
Legal Topics
Abuse of Process, Stay of Proceedings, Fair Trial, Undue Delay, Disclosure Obligations, Legal Professional Privilege, Mutual Legal Assistance, Witness Availability, Retrial
Source Language
EN
Criminal Law Procedural Law Evidence Abuse of Process Stay of Proceedings Fair Trial Undue Delay Disclosure Obligations +4 more

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Parties

HKSAR

Prosecution

CHEN Keen (alias Jack CHEN)

1st Accused

HAO May (formerly WANG May Yan; alias May WANG)

2nd Accused

YEE Wenjye (also known as YU Wenjie; alias Eric YEE)

3rd Accused

Procedural Posture

Criminal Application for Permanent Stay Following Aborted Retrial / Pre Trial (application for Permanent Stay) Ruling Refusing Stay

Legal Issues

  1. 1 Whether a permanent stay of criminal proceedings is justified as an abuse of process
  2. 2 Whether delayed proceedings and witness memory loss render a fair trial impossible
  3. 3 Whether the prosecution’s refusal to call certain witnesses amounts to an abuse of process

Ratio Decidendi

The judge held the defence failed to establish on the balance of probabilities that a fair trial is impossible or that continuation would constitute an abuse of process; remedial measures (ordering prosecution to call or tender two witnesses, providing prior transcripts to witnesses, use of MLA) mitigate prejudice from delay and memory loss; previous detailed analysis by DHCJ Bruce supporting retrial fairness was persuasive; therefore stay refused.

Court Disposition

Application for permanent stay refused.

Orders

  • Application for permanent stay dismissed
  • Prosecution invited to call or tender Mr Nicholas John Cross and Mr Kerry Joel Knight as witnesses in forthcoming trial