HKSAR v. MO YUK PING AND OTHERS

HKSAR v. MO YUK PING AND OTHERS

Accused failed to discharge the onus on the balance of probabilities to show a fair trial is impossible from the destruction of interception material; the interception and destruction policy applied by the Government and implemented by the ICAC was rational and struck a fair balance between privacy and law enforcement; there was no finding of bad faith or serious fault by the ICAC and therefore no abuse of process warranting a permanent stay; applications dismissed and trial to proceed.

Citation
HKSAR v. MO YUK PING AND OTHERS
Parties
Prosecution: HKSAR; Accused: MO Yuk-ping; Accused: Five Others
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
23 August 2005
Case Number
DCCC1360/2004
Procedural Posture
Criminal / Pre Trial Application for Permanent Stay
Outcome
Applications for permanent stay dismissed; trial to proceed against the First and Second Accused on all charges
Legal Topics
Stay of Proceedings, Telecommunications Interception, Disclosure of Unused Material, Abuse of Process, Basic Law Article 30/39, Telecommunications Ordinance S.33
Source Language
EN
Criminal Law Constitutional Law Evidence Administrative Law Privacy Law Stay of Proceedings Telecommunications Interception Disclosure of Unused Material +3 more

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Parties

HKSAR

Prosecution

MO Yuk-ping

Accused

Five Others

Accused

Procedural Posture

Criminal / Pre Trial Application for Permanent Stay

Legal Issues

  1. 1 Whether destruction of intercepted telecommunications renders a fair trial impossible
  2. 2 Whether prosecution/ICAC conduct warrants a permanent stay as abuse of process despite a fair trial being possible
  3. 3 Whether s.33 of the Telecommunications Ordinance is inconsistent with the Basic Law and therefore void

Ratio Decidendi

Accused failed to discharge the onus on the balance of probabilities to show a fair trial is impossible from the destruction of interception material; the interception and destruction policy applied by the Government and implemented by the ICAC was rational and struck a fair balance between privacy and law enforcement; there was no finding of bad faith or serious fault by the ICAC and therefore no abuse of process warranting a permanent stay; applications dismissed and trial to proceed.

Court Disposition

Applications for permanent stay dismissed; trial to proceed against the First and Second Accused on all charges

Orders

  • Application by each of the First and Second Accused for permanent stay dismissed
  • Trial on all respective charges to proceed against each Accused