Keen
[2013] NZHC 2553
•1 October 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-404-000272 [2013] NZHC 2553
UNDER the Mutual Assistance in Criminal Matters
Act 1992, ss 31(1)(b) and 35
IN THE MATTER of taking of evidence in relation to 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: 30 September 2013 Appearances:
C Draycott SC and J Ng for the Department of Justice; Hong
Kong Special Administrative Region
A King SC and P Tsang for Chen Keen
G Harris SC and V Ho for May HaoJ Billington QC (on instruction from M Cheng) for Chen Keen and May Hao
J M Jelas and Z R Hamill for the Central Authority
Judgment:
1 October 2013
REASONS JUDGMENT OF ELLIS J
This judgment was delivered by Justice Ellis on 1 October 2013 at 4:45 pm
pursuant to R 11.5 of the High Court Rules.
Registrar / Deputy Registrar
Date……………………….
RE KEEN & ORS [2013] NZHC 2553 [1 October 2013]
[1] These are the reasons for the suppression order made by me yesterday. The terms of that order are recorded at [22] and [23] below.
[2] Under Part 3 of the Mutual Assistance in Criminal Matters Act 1992 (MACMA) a prescribed foreign country may request that the New Zealand Attorney- General provide legal assistance in relation to the taking of evidence in New Zealand in relation to a criminal proceeding that is underway in that foreign country.
[3] Hong Kong is such a “country”. Part 3 of MACMA applies to it by virtue 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).
[4] In the present case, a request for the taking of evidence from five New Zealand witnesses has been made by Hong Kong and has been granted by the Attorney-General. The evidence relates to charges laid in Hong Kong against Chen Keen (Jack Chen), May Hao (May Wang), Yee Wenjye (Eric Yee) and Ng Yat-Fung (collectively, the defendants) alleging fraud and money-laundering. The evidence of the New Zealand witnesses is required for the purpose of a preliminary hearing currently being conducted in Hong Kong. That preliminary hearing will determine whether or not the defendants should be committed for trial (by jury) on the charges.
[5] Central to the charges is the allegation that in 2009/10 Mr Chen conspired with Ms Hao and others to obtain advantage for themselves by dishonestly inducing National Dairy New Zealand to acquire 22 dairy farms from the CraFarms Group for an inflated price, and without revealing the true extent of their interest in the acquisition.
[6] Both at the time and subsequently, there has been a good deal of media and public interest in New Zealand in the relevant events. I accept that that interest remains high today.
[7] The issue that accordingly arises is whether, and to what extent, media coverage of the taking of evidence in this Court on behalf of the Hong Kong Court pursuant to the mutual assistance regime should be permitted. Although there had earlier been a further issue about whether the hearing should take place in open court
at all, that has been resolved. Thus the starting position is that the New Zealand media may attend the hearing, but whether or not they may publish what they hear requires determination. Also for determination is a specific application by Radio New Zealand to record the evidence given at the hearing, which is scheduled to last for some 10 days.
[8] Were the evidence being given in the context of New Zealand criminal proceedings, the starting point would be that media coverage would be permitted, subject to any specific suppression orders that might be made under the Criminal Procedure Act 2011 (the CPA). In general terms, suppression of evidence in a criminal matter is governed by s 205 of the CPA which provides:
(1) A court may make an order forbidding publication of any report or account of the whole or any part of the evidence adduced or the submissions made in any proceeding in respect of an offence.
(2) The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—
(a) cause undue hardship to any victim of the offence; or
(b) create a real risk of prejudice to a fair trial; or
(c) endanger the safety of any person; or
(d) lead to the identification of a person whose name is suppressed by order or by law; or
(e) prejudice the maintenance of the law, including the prevention, investigation, and detection of offences.
[9] Self-evidently, the risk that publication will prejudice a fair trial arises principally at the pre-trial stage. But as I have said, the default position is that publication is permitted, even then.
[10] In Hong Kong, however, the position is different. There, s 87A of the
Magistrates Ordinance (Cap. 227) relevantly provides:
(1) No person shall publish in Hong Kong a written report, or broadcast in Hong Kong a report, of any committal proceedings in Hong Kong containing any matter other than that permitted by subsection (7).
...
(7) A report of committal proceedings published or broadcast without any order under subsection (2)1 and before the time specified in subsections (5) and (6) may contain–
(a) the identity of the court and the name of the magistrate;
(b) the names, addresses, occupations and ages of the parties and witnesses;
(c) the offence, or a summary thereof, with which the accused is charged;
(d) the names of counsel and solicitors engaged in the proceedings;
(e) any decision of the magistrate to commit the accused for trial, and any decision of the magistrate on the disposal of the case of any defendants not committed;
(f) where the magistrate commits the accused for trial, the charge, or a summary thereof, on which he is committed and the court to which he is committed;
(g) where the committal proceedings are adjourned, the date and places to which they are adjourned;
(h) (Repealed)
(i) whether legal aid was granted to the accused.
[11] The section also provides that a report of committal proceedings may be published or broadcast at the conclusion of those proceedings. There are other exceptions which are not presently relevant.
[12] On the basis of that provision, and the fair trial concerns which underpin it, all Hong Kong counsel appearing, namely counsel for both the prosecution and the defence, oppose the publication by the New Zealand media of any of the evidence heard in this Court. Counsel for the New Zealand Crown took a neutral stance but made submissions to assist the Court.
Discussion
[13] It is not, I think, disputed that the present evidentiary hearing does not constitute a criminal proceeding such that the CPA would govern the position. Equally, it is not in dispute that the law of Hong Kong is not determinative as far as
this Court is concerned. Rather, as Mr Billington QC submitted, the issue is one which engages the Court’s inherent jurisdiction to control its own processes and, in that context, to make orders to suppress evidence.2
[14] There are two principal matters which have caused me to determine that I should exercise that jurisdiction and make orders that publication of the evidence and submissions by the media should not be permitted here.
[15] First, there are the requirements of international comity upon which the mutual assistance regime is founded. In the necessary absence of any real knowledge about the conduct of trials and criminal process in Hong Kong I accept the submission made by Ms Jelas (and adopted by other counsel) that weight should be placed on the assessment that has been made by the legislature there as to the prerequisites for a fair trial.
[16] Secondly, there are also specific fair trial issues that arise in this case and which are capable of assessment by this Court. I discuss these below.
[17] The point was made by counsel that, in the digital age, the risk that New Zealand media coverage of the hearing would be picked up by the Hong Kong media is both self-evident and certain. And even though the advice from counsel is that the trial (if it proceeds) is unlikely to commence much before the end of 2014, the nature of the internet means that any such publication will remain available on line for any potential juror to see.
[18] That said, I also accept the submissions made by Mr Nippert (a Fairfax journalist who was present at the hearing) that the risks associated with such publicity can be overstated and, without more, would not (in New Zealand) be likely to lead to a prohibition on publication. But, in this case, I consider that there is “more”.
[19] The present hearing is of an unusual kind in that it involves the taking of only a small part of the pre-committal evidence. As I understand it, the rest of that evidence has already been taken in Hong Kong and has, of course, not been reported.
Accordingly any reporting of the present hearing would necessarily result in a very partial account of a much bigger evidentiary picture. Through no fault of the New Zealand media’s a fair report could not, therefore, be given.
[20] As well, there has already been a ruling given in relation to this hearing that it is not for this Court to determine the admissibility of any of the evidence given.3
Only matters of compellability and privilege can be determined here. Accordingly, if reporting is permitted there is real risk that evidence that is later, in Hong Kong, ruled inadmissible will already have been made public. Although there are arguably mechanisms that could be put in place to mitigate that risk they would certainly not be foolproof. Moreover that risk is not one that an accused would usually face in relation to media reporting of indigenous pre-trial matters but, in my view, it is one that is posed in the present case.
[21] In these circumstances I consider that the presumptive legal position in Hong Kong is underscored by a specific and identifiable risk of prejudice to the fair trial of the defendants, if media reporting occurs now.
[22] Accordingly I formed the view that the media should be prohibited from publishing reports of this hearing, subject only to the basic exceptions specified in s
87A(7) of the Hong Kong Ordinance (above). I make an order accordingly. The application by Radio New Zealand is necessarily denied. Media are however permitted to attend the hearing if they wish.
[23] The orders shall have effect until further order of this Court or the conclusion of the trial in Hong Kong.
Rebecca Ellis J
3 Re Keen [2013] NZHC 2382.
0