Prosecution’s duty of disclosure – suggestions as to improvement of system for ensuring that proper disclosure made
D faced a count of conspiracy to throw corrosive fluid, namely sulphuric acid, with intent to do grievous bodily harm to Mr. Mitchell (“V”), the particulars of the count being that D had on or about 27 October 2009 conspired with a number of named persons to carry out that attack. That attack was carried out on that date outside the District Court Building where V was appearing as counsel for the prosecution of X. The witnesses who gave evidence for the prosecution against D included two of the persons named as his co-conspirators. These two witnesses were PW2 and PW3, each of whom had pleaded guilty to the conspiracy in question and had been sentenced to 11 years’ imprisonment. Having been arrested in 2009 and released from custody in 2010, D was rearrested in 2013. His trial in the High Court commenced in 2015. PW2–3 testified against him. In the witness box, D admitted being present when V was attacked but denied being involved in the conspiracy or the attack. The jury found him guilty. D applied for leave to appeal against his conviction. Two grounds of appeal were put forward on his behalf. Ground 1 was that there had been material non-disclosure by the prosecution in that certain documents which should have been disclosed were not disclosed. The documents were specified to be: (a) PW2’s affirmation filed in support of his application for leave to appeal against sentence out of time; (b) letters written to various police officers by PW3 while he was in custody; and (c) various police investigation reports and police notebooks recording the fact of certain visits by police officers to PW2–3 while they were in the custody of the Correctional Services Department. Ground 2 was that having regard to the prosecution’s reliance on accomplice evidence, there were “irregularities or unsatisfactory aspects” of the Judge’s summing-up which “created a lurking doubt” rendering D’s conviction unsafe and unsatisfactory.
Held, granting leave, treating the hearing as the appeal and allowing the appeal by quashing the conviction, but ordering a retrial, that:
- As was observed in Hall v HKSAR, the rationale, status, nature and scope of the prosecution’s duty of disclosure in Hong Kong was as set out in HKSAR v Lee Ming Tee (No. 1) (2003) 6 HKCFAR 336.
- The prosecution’s duty of disclosure in respect of accomplice witnesses was of particular importance.
- That was so whether the accomplices gave evidence under immunity or they gave evidence otherwise than under immunity but there was a possibility of a reduction in sentence being afforded to them by an appellate court or the Chief Executive.
- PW2’s affirmation should have been disclosed to the defence because it would have, if disclosed, permitted a line of cross-examination by the defence that he was motivated to secure a reduction of sentence on the basis that not only had he given a detailed statement to the police describing the conduct of his accomplices but was prepared to give evidence against them, including D.
- Prosecutors had a duty to be proactive in discharging their duty that all disclosable material was disclosed to the defence, all the more so in a serious case involving accomplice evidence.
- It was necessary that the principles of disclosure articulated in the Department of Justice’s “Prosecution’s Code” be underpinned and given effect by a simple system in which prosecuting counsel gave directions to investigating police officers in respect of potential unused material, requiring confirmation as to whether such material did or did not exist, the directions and responses to be in writing and retained.
- The fact that PW3 had written 12 letters to police officers involved in the prosecution of D and that police officers had made 20 visits to him and the fact that the accomplices had been provided with their out-of-court statements and their non-prejudicial statements in the days prior to the commencement of D’s trial would have, if disclosed as they should have been, provided the defence with potentially fruitful lines of cross-examination of the accomplices.
- With regard to disclosure, the Code of Practice in England & Wales might provide the Director of Public Prosecutions in Hong Kong with a useful point of reference.
- Since the appeal succeeded on Ground 1, it was unnecessary to deal with Ground 2.
- Having regard to the strength of the prosecution’s case, there should be a retrial despite the disadvantage to the defence arising from the fact that only very limited records of the conversations between the accomplices and police officers existed, such disadvantage being a matter in respect of which the judge could give the jury appropriate directions at the retrial.