High Court of Hong Kong v Keen
[2013] NZHC 2382
•13 September 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-404-000272 [2013] NZHC 2382
UNDER the Mutual Assistance in Criminal Matters
Act 1992, ss 31(1)(b) and 35
IN THE MATTER of criminal proceedings now pending before the High Court of Hong Kong Special Administrative Region of the People's Republic of China against CHEN KEEN, MAY HAO, YEE WENJYE and NG YAT-FUNG
Hearing: 9 September 2013
Counsel: JM Jelas for Central Authority
JR Billington QC for Defendants
Judgment: 13 September 2013
JUDGMENT OF BREWER J
This judgment was delivered by me on 13 September 2013 at 11:00 am pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors: Crown Law (Wellington) for Central Authority
Swarbrick Beck Mackinnon (Auckland) for Keen and Hao
HIGH COURT OF HONG KONG v KEEN & ORS [2013] NZHC 2382 [13 September 2013]
Introduction
[1] The Mutual Assistance in Criminal Matters Act 1992 (MACMA) facilitates the provision and obtaining of international assistance in criminal matters. Pursuant to Part III of MACMA, a prescribed foreign country may request the Attorney- General for assistance in a criminal matter. Such assistance can include the taking of evidence in New Zealand.
[2] Hong Kong is a prescribed foreign country. Part III of MACMA applies to it by authority of the Mutual Assistance in Criminal Matters (Prescribed Foreign Country) (Hong Kong Special Administrative Region of the People’s Republic of China) Regulations 1999 (the Regulations).
[3] A request for the taking of evidence has been made in this case by Hong Kong and has been granted by the Attorney-General. The evidence relates to charges against Chen Keen and May Hao (the applicants) and others alleging (broadly) fraud in commercial dealings. The evidence is for the purpose of a preliminary hearing being conducted currently in Hong Kong into whether the applicants and others should be committed for trial on the charges.
[4] On 19 March 2013, I scheduled the taking of evidence before a Judge to commence on 30 September 2013. I allowed 10 days.
[5] On 27 August 2013, counsel for the applicants filed an application for an adjournment. The grounds given were:1
2.1The Central Authority has failed to afford Chen Keen and May Hao the rights of disclosure of evidence and documents to which they would be entitled under the law of Hong Kong.
2.2The Central Authority and the Attorney-General for New Zealand have failed to afford Chen Keen and May Hao the rights of disclosure of evidence and documents to which they would be entitled under the law of New Zealand.
2.3That if the hearing proceeds as scheduled, Chen Keen and May Hao will be denied their right to justice under s 27 of the New Zealand Bill of Rights Act 1990.
1 Application for adjournment of hearing set down for 30 September 2013.
[6] The Central Authority opposes the application. I heard argument on
9 September 2013.
Submissions
[7] Mr Billington QC’s overarching submission on behalf of the applicants is that New Zealand law applies to the taking of evidence as if the applicants were the subject of criminal charges in New Zealand. They are entitled to the procedural and substantive protections afforded to defendants in criminal proceedings in New Zealand by New Zealand law.
[8] Mr Billington refers to the Regulations. He points, in particular, to Article XI
in the Schedule. This provides:
(1) Where a request is made that evidence be taken for the purpose of the prosecution of a criminal offence or proceedings in relation to a criminal matter in the Requesting Party, the Requested Party shall, subject to its law, arrange to have such evidence taken and transmitted to the Requesting Party.
(2) For the purposes of this Agreement, the giving or taking of evidence shall include the production of documents, records or other material.
(3) For the purposes of requests under this Article the Requesting Party shall specify the subject matter about which witnesses are to be examined, and may also specify any questions to be put to them as well as the manner and form in which evidence should be taken.
(4) Where, pursuant to a request for assistance, a person is to give evidence for the purpose of proceedings in the Requesting Party, the parties to the relevant proceedings in the Requesting Party, their legal representatives or representatives of the Requesting Party may, subject to the law of the Requested Party, appear and question the person giving that evidence.
(5) A person who is required to give evidence in the Requested Party pursuant to a request for assistance may decline to give evidence where either:
(a) the law of the Requested Party would permit or require that witness to decline to give evidence in similar circumstances in proceedings which originated in the Requested Party; or
(b) where the law of the Requesting Party would permit or require that person to decline to give evidence in such proceedings in the Requesting Party.
(6) If any person claims that there is a right or obligation to decline to give evidence under the law of the Requesting Party, the Requested Party
shall with respect thereto obtain a certificate from the Central Authority of the Requesting Party.
[Emphasis added]
[9] In Mr Billington’s submission, the phrases “subject to its law” and “subject to the law of the Requested Party” appearing in paragraphs (1) and (4) make it clear that New Zealand law applies. Even if they do not, disclosure in New Zealand is governed by the Criminal Disclosure Act 2008. Section 6 defines “criminal proceedings” as meaning (relevantly) proceedings for an offence for which a conviction may be entered. The section does not restrict its meaning to proceedings in New Zealand.
[10] Therefore, in Mr Billington’s submission, criminal proceedings having been commenced against the applicants in Hong Kong, with evidence to be taken in New Zealand under MACMA, the Criminal Disclosure Act applies. It is further submitted that disclosure under ss 12 and 13 of that Act has not been made.
[11] Mr Billington adds a further ground to the application for adjournment. He submits that Article X11(4) grants a defendant a right, subject to New Zealand law, to appear and question a person giving evidence pursuant to a request for assistance. He submits that the Hong Kong authorities are not prepared to transport the applicants to New Zealand for the taking of evidence. He submits that this Court should seek assurances from the Hong Kong authorities that arrangements are in place to ensure that the applicants are able to be present at the hearing. If assurances are not given then the taking of evidence must not take place.
[12] A third issue is raised by Mr Billington. It does not go to adjournment. The applicants would like the taking of evidence (if and when it proceeds) to take place in closed Court. This is provided for in Hong Kong law at the discretion of the Magistrate conducting the preliminary enquiry. It is also within the discretion of the Judge presiding at the taking of evidence.
[13] Ms Jelas for the Central Authority submits:
(1)Disclosure has been made in accordance with New Zealand law and Hong Kong law. Therefore, there is no factual basis for granting an adjournment.
(2)The applicability of New Zealand criminal procedure is limited to matters of privilege and compellability, not the admissibility of evidence.
(3) The right to be present is not absolute. The defendants may come to New Zealand if they wish, and they have the means to do so. They have been offered the option of a video link but they have declined it. Under Hong Kong law, video links can be offered but not imposed.
(4) The Central Authority is neutral over whether the taking of the evidence is in open Court or in closed Court.
[14] Mr Billington responds by accepting that I cannot decide the disclosure issue now. That is because of the dispute between the parties as to whether disclosure has been made. Instead, he seeks an order requiring the filing of documents sought to be relied upon by the Central Authority at the taking of evidence. He maintains his submissions on the right to be present, making it clear that the proper exercise of this right is a prerequisite to the hearing proceeding. So far as whether the hearing is in private or not, he suggests an interim order to hold the position until the presiding Judge can determine it.
Discussion
[15] I do not accept Mr Billington’s submission that New Zealand law applies to the taking of evidence as a result of a MACMA request as if the applicants were the subject of criminal charges in New Zealand. The rights of the applicants, and the duties of the Court, have to be seen in the context of the role of the Court in the taking of evidence. The applicants are not on trial in New Zealand. The Court has no power to make any decision affecting the disposition of the charges against them. Neither does the Court have the power to make a determination in respect of the
applicants’ rights, obligations, or interests protected or recognised by law.2 All that the Court is doing is providing the Requesting Party (Hong Kong, in this case) with an opportunity to have evidence taken and recorded in a form which can be received by the Courts of the Requesting Party as possible evidence.
[16] The applicability of the laws of New Zealand is covered in MACMA. So, for example, in s 32 it is provided:
(1) Subject to section 33 of this Act, the laws of New Zealand with respect to the compelling of persons to attend before a Judge, and to give evidence, answer questions, and produce documents or other articles, upon the hearing of a charge against a person for an offence against the law of New Zealand shall apply, so far as they are capable of application and with all necessary modifications, with respect to the compelling of persons to attend before a Judge, and to give evidence, answer questions, and produce documents or other articles, for the purposes of section 31 of this Act.
[17] The evidence which can be taken is also confined. Section 36 of MACMA
provides that nothing in MACMA limits or affects the Evidence Act 2006. [18] MACMA provides protections for parties who are subject to a request:
(a) Section 24A – which prescribes limitations on requests by convention countries;
(b)Section 27 – which permits the Attorney-General to refuse a request on grounds going (broadly) to the nature of the offence or the possible punishment;
(c) Section 32 – compellability of witnesses subject to New Zealand law
(see s 32(1) quoted at [16]);
(d) Section 33 – protection of witnesses.
[19] Within this framework, the decisions the Court can make are limited to issues of admissibility, compellability and privilege. In my view, this is made clear by
ss 32, 33 and 36 of MACMA. Article XI(1) and Article XI(5) of the Schedule are consistent with these sections. In this respect, I agree with the dicta of Barwick CJ in the High Court of Australia in which, addressing a similar provision under Australian law, he made the following observation:3
[The section] is defined to serve a quite special and, at the same time, quite limited purpose, that of taking evidence at the request of a foreign state for use in the course of criminal matters pending in the courts of that state. The magistrate who takes such evidence exercises no more than a recording function. He decides no matter of right and makes no rulings as to admissibility of evidence. All that will be for the foreign court, whose law may be unknown to the magistrate as may be its detailed rules as to admissibility of evidence.
[20] In my view, disputes about disclosure and resulting defects in the evidence recorded in the hearing are for the Hong Kong Courts to pronounce on. It might be that if failures and defects exist then evidence recorded will be ruled to be inadmissible by the Hong Kong Courts. That is a risk that the Central Authority runs.
[21] My view on the role of the Court in taking evidence under MACMA does not mean that the Court has no independent role at all. Obviously, the Court would act to prevent an abuse of its process. And, it would give reasonable effect to the right of a party to whom the proceedings in the foreign country relate to question a witness. Section 34 of MACMA and Article XI(4) of the Schedule make it clear that a party may do so. So, if evidence is called or given which takes a party by surprise, the jurisdiction must exist to adjourn the taking of evidence for a reasonable period to enable proper questioning to take place.
[22] It follows that I do not accept that a party has an absolute right to be present to question witnesses giving evidence at the hearing. Article XI(4) does not make that a condition precedent to the hearing taking place and New Zealand law does not apply to require it. If the absence of a party renders the evidence taken inadmissible under Hong Kong law, then that will be a matter for the Hong Kong Courts.
[23] It follows also that I do not accept that the Criminal Disclosure Act has any bearing on this case. First, it is clear to me that this statute has a domestic focus. It does not apply to criminal proceedings initiated and being prosecuted in foreign countries. Second, MACMA does not specify that it applies to Part III requests – as it does for the Evidence Act.
[24] So far as the matter of the Court being open or closed is concerned, that is a matter for the presiding Judge.
Decision
(1)The application for adjournment is declined. The taking of evidence will proceed on 30 September 2013 as scheduled.
(2)Whether or not disclosure has been made is not a concern of this Court in these circumstances. It will be for the Court in Hong Kong to decide consequences for any breach of the relevant law of Hong Kong.
(3)The applicants have a qualified right to ask questions of the Central Authority’s witnesses, in person or through legal representatives. In their absence, and without circumstances which would constitute an abuse of the process of the Court, the taking of evidence will proceed.
(4)The Criminal Disclosure Act 2008, s 27 of the New Zealand Bill of Rights Act 1990 and other New Zealand law not imported by MACMA do not apply to the taking of evidence for a preliminary inquiry. The jurisdiction of the Court to prevent an abuse of its process remains.
(5) Whether or not the hearing is open to the public or closed will be a matter for the presiding Judge.
Brewer J
0
1