Secretary for Justice v Cheng Kam Mun
Court of First Instance
Miscellaneous Proceedings Nos. 2916–2932 of 2015
Anderson Chow J in Chambers
16 December 2016

Affidavits – direction made in proceedings for committal for criminal contempt that affidavits or affirmations of Secretary for Justice’s witnesses stand as evidence-in-chief

The Secretary for Justice (the “SJ”) applied for a direction that the affidavits or affirmations filed on his behalf stand as the evidence-in-chief of the deponents at the trial of the proceedings for committal for criminal contempt provided that the deponents attend the trial to be cross-examined on their affidavits or affirmations by or on behalf of the respondents, Rs. Some of Rs supported the application, some of them opposed it and some of them adopted a neutral position. Counsel for the SJ advanced the following five reasons for making the direction sought: (a) there was power to give such a direction; (b) a similar direction had been given in the “Taxi Cases” by consent, and there was no rational reason for not giving the same direction in the present group of cases; (c) the current estimated length of trial of 40 days was based on the affidavits or affirmations standing as the deponents’ evidence-in-chief. If the deponents were required to give oral evidence in the traditional manner, it was estimated that an additional 15 to 20 days would be required for the trial; (d) there was no clear or intelligible reason why the deponents should be required to give evidence-in-chief in the traditional manner. None of Rs had indicated which paragraphs of the deponents’ affidavits or affirmations, or what areas of their evidence, was likely to be disputed. Nor had any of them been able to explain what tactical advantage he or she might obtain by requiring the deponents to give evidence-in-chief in the traditional manner; and (e) the mere fact that a witness’s credibility might be in issue did not necessarily mean that his or her witness statement should not be allowed to stand as his or her evidence-in-chief. The objections made to the direction sought were as follows: (a) the SJ should, instead of seeking such a direction, put forward agreed facts for Rs’ consideration, and use his prosecutorial discretion to identify witnesses who were necessary to prove his case so as to limit the number of witnesses required to give evidence at the trial; (b) Rs were not required to disclose or give any indication of their defence, because these were proceedings for criminal contempt with penal consequences. Hence, the SJ’s fourth reason had no force or validity; (c) the present cases and the facts in issue were identical to summary offences of a criminal nature. So the safeguards in the criminal trial process to ensure the integrity and fairness of the system should be followed. And there were Australian authorities which explained the rationale behind the usual rule or practice of requiring witnesses to give their evidence orally in criminal trials; and (d) requiring the witnesses to give evidence-in-chief would promote the public interest in the transparency of the proceedings.

Held, making the direction sought subject to any direction as might be given by the trial judge that the whole or any part of the evidence-in-chief of any particular witness be given orally, that:

  • Of the five reasons which counsel for the SJ advanced for making the direction sought, the important ones were the third and fourth reasons. As to the objections made to the direction sought, the position was as set out in the second to fifth holdings below.
  • The direction sought would not be an obstacle to the agreement of undisputed facts or the limitation of witnesses.
  • If, as they were entitled to, Rs chose not to disclose their defence, the Court could only decide on the basis of the materials and arguments before it whether it was just to make the direction sought.
  • What was critical was not whether the proceedings were treated as civil or criminal but whether the direction sought would cause any real prejudice to Rs or compromise the fairness of the trial. The direction sought would not do either of those things.
  • Transparency would not be compromised by the making of the direction sought. The trial would be fully reported in the media. And a large part of the SJ’s case would be presented by video evidence rather than the oral evidence of witnesses.
  • Whether the direction sought should be made was ultimately a matter of case management. The result to be arrived at was one which promoted the efficient administration of justice while seeing that Rs would not be prejudiced. The proper balance could be achieved by making the direction sought subject to an express proviso that the trial judge could direct the whole or any part of the evidence-in-chief of any particular witness be given orally.
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