Judge refuses to abort criminal trial

PUBLISHED : Tuesday, 28 September, 2010, 12:00am
UPDATED : Tuesday, 28 September, 2010, 12:00am

A judge has rejected the first application since the handover to abort a criminal trial. Defence counsel had argued that mainlanders could not be compelled to testify in local proceedings, resulting in an unfair trial.

Hon Ming-kong, 42, former chairman of listed company China Sciences Conservational Power, former executive director Anthony Chow Ho-tung, 49, and an employee of a subsidiary, Lai Kam-tung, 43, have been on trial since April 2008, facing 13 charges of conspiracy to defraud and theft involving HK$72 million.

In the District Court, judge Stanley Chan Kwong-chi refused an application from Hon and Lai for a permanent stay. The offences allegedly took place in 2004 and 2005. The company has been renamed Asia Energy Logistics Group.

Hon's counsel, Clare Montgomery QC, earlier said the trial was unfair because the defendants could not compel 14 mainlanders - who were potential witnesses - to give evidence in court. She said the defendants' right to use the power of the state to compel witnesses to testify was a basic common law right to a fair trial.

She argued that such a right continued to exist after the handover in 1997 because the mainland had undertaken to allow the enforcement of common law in Hong Kong.

Moreover, the inequality of resources between the prosecution and the defence was prejudicial to her client, she said.

But counsel for the government Peter Dunn argued that the prosecution was also unable to force 12 people to give evidence in court. He was prepared to admit statements by defence witnesses provided they were drafted in an admissible form.

Professor Zhang Xianchu from the University of Hong Kong told the court earlier that Article 95 of the Basic Law did not entitle private practitioners or individuals to contact mainland authorities for legal assistance. The article states that the administration may maintain juridical relations with the judicial organs of other parts of the country.

Under the 'one country, two systems' principle, it is too simplistic to think that the mainland authorities had the responsibility to compel witnesses from all over the country to testify in Hong Kong's courts, Chan said. 'Permanent stay is a remedy of last resort ... the court must be satisfied that a fair trial is no longer possible,' Chan said.

He held that the defendants had not been prejudiced. Neither did he find that the prosecution or the administration had done anything so horrendous that it would affront public conscience or the integrity of the criminal justice system.

The judge earlier refused Hon's application to compel the administration to disclose correspondence with the central government. Hon sought disclosure of the documents to check if the government had put in the effort to help him. The case was adjourned to October 11.