Attorney-General of Hong Kong v Cheung (Wai-Bun): PC 1994

(Hong Kong) The defendant was indicted on charges of conspiracy to defraud and false accounting, the allegation being that the false accounting offences had been committed in order to conceal the conspiracy. The Crown sought to rely on the cover-up they were alleging to show that the defendant had contributed to the delay.
Held: ‘However the difficulty in the way of [that submission] is that unless and until the defendant’s guilt or innocence was established at the trial, it would not be known whether the defendant had been responsible for concealing the fraud offence. His involvement was the very question around which the trial would revolve … In relation to conduct which will be an issue at the trial, the correct approach is for the judge to bear in mind the nature of the Prosecution’s case as part of the factual background against which the alleged delay has to be considered and not as necessarily being a bar to the application succeeding. In this case there can be no doubt that Duffy J was well aware of this and there is nothing in his judgment to indicate that he did not give due consideration to the nature of the Prosecution’s case in reaching his decision to grant a stay. ‘ and ‘There remains the question as to whether Duffy J. was correct in saying that there is no material distinction between the onus on a defendant who seeks to have a prosecution stayed as being an abuse of process at common law and the onus which faces a defendant who wishes to establish that he is entitled to have the proceedings stayed under the Bill of Rights. Mr. Nicholls having accepted that, if there was any distinction between the approach at common law and under the Bill, this distinction could not avail him on this appeal, their Lordships had to decide whether to determine this issue. In the circumstances their Lordships decided not to do so and did not call on Mr. Robertson to address the Board as they had already decided that his help was not needed as to the outcome of the appeal. Their Lordships recognise that it is possible to argue that there is a difference of approach at common law and under the Bill. However, as any difference in the approach to be adopted is only likely to be of significance in a very small minority of applications for stay, their Lordships have decided that it is preferable not to determine the extent of the difference in this case, where it would be merely an academic exercise, but to leave it to be determined in a case where the existence of the difference would materially affect the result of the appeal. The issue is one which can be more satisfactorily examined in the context of a case where a difference in approach could have practical consequences.’


Lord Woolf


[1994] 1 AC 1



Cited by:

CitedDirector of Public Prosecutions and others v Tokai and others PC 12-Jun-1996
(Trinidad and Tobago) The appellant had been charged in 1981 with offences alleged to have been committed shortly before. The proceedings continued until his appeal for one was dismissed in 1988. The wounding charges were proceeded with only in . .
Lists of cited by and citing cases may be incomplete.


Updated: 30 April 2022; Ref: scu.211433