HKSAR v. MO YUK PING AND OTHERS

HKSAR v. MO YUK PING AND OTHERS

On the balance of probabilities the accuseds failed to show that destruction of intercepted materials made a fair trial impossible or that ICAC conduct amounted to an abuse of process warranting a permanent stay; ICAC acted pursuant to a longstanding government policy to use intercepts for intelligence and to destroy product, there was no duty to retain the materials, no mala fides established, and the question of s.33's constitutionality was unnecessary to decide; accordingly applications for permanent stay are dismissed and trial to proceed.

Citation
HKSAR v. MO YUK PING AND OTHERS
Parties
Prosecution: HKSAR; First Accused: MO Yuk-ping; Co Accused: Five Others
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
23 August 2005
Case Number
DCCC636/2005
Procedural Posture
Criminal / Pre Trial Application for Permanent Stay of Proceedings
Outcome
Applications for permanent stay dismissed; trial to proceed against the accused
Legal Topics
Stay of Proceedings, Telecommunications Interception, Disclosure Obligations, Abuse of Process, Basic Law Article 30/39, Iccpr/bill of Rights
Source Language
EN
Criminal Law Constitutional Law Evidence Law Administrative Law Human Rights Stay of Proceedings Telecommunications Interception Disclosure Obligations +3 more

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Parties

HKSAR

Prosecution

MO Yuk-ping

First Accused

Five Others

Co Accused

Procedural Posture

Criminal / Pre Trial Application for Permanent Stay of Proceedings

Legal Issues

  1. 1 Whether permanent stay is justified because fair trial is impossible due to destruction of intercepted telecommunications
  2. 2 Whether permanent stay is justified even though fair trial remains possible because conduct amounted to abuse of process/offended public conscience
  3. 3 Whether s.33 Telecommunications Ordinance is inconsistent with the Basic Law and whether that affects entitlement to stay

Ratio Decidendi

On the balance of probabilities the accuseds failed to show that destruction of intercepted materials made a fair trial impossible or that ICAC conduct amounted to an abuse of process warranting a permanent stay; ICAC acted pursuant to a longstanding government policy to use intercepts for intelligence and to destroy product, there was no duty to retain the materials, no mala fides established, and the question of s.33's constitutionality was unnecessary to decide; accordingly applications for permanent stay are dismissed and trial to proceed.

Court Disposition

Applications for permanent stay dismissed; trial to proceed against the accused

Orders

  • Application by First Accused for permanent stay dismissed
  • Application by Second Accused for permanent stay dismissed