PD9.8 Management of Complex Commercial Crime Cases

PRACTICE DIRECTION 9.8 -

MANAGEMENT OF COMPLEX COMMERCIAL CRIME CASES

1. This Practice Direction shall apply in both the High Court and the District Court.

2. The objective of this Practice Direction is to allow the use of active case management procedures to try complex commercial crime cases fairly, expeditiously and on their merits by ensuring that: -

(a)    the real issues to be tried are identified at the earliest stage practicable;

(b)    the presentation of the prosecution and defence cases is relevant and efficient; and

(c)    the resources of the court are properly used.

3. Definitions

A complex commercial crime case is one which in the opinion of a Designated Judge involves a case of fraud or dishonesty in a commercial context which is of such seriousness, length or complexity as to warrant the application of this Practice Direction.

A Listing Judge is the Judge in either the High Court or the District Court who is responsible for listing a criminal case for trial.

A Designated Judge is the judge before whom the Listing Judge sets down a case for determination as to whether it is a complex commercial crime case.

4. Procedure

	(a)	When a case comes before a Listing Judge and he forms the view that it may be a complex commercial crime case then the Listing Judge will set it down for an initial case management hearing before a Designated Judge.

	(b)	That initial case management hearing will, in the normal course, be set down within six weeks of the case coming before the Listing Judge.

	(c)	For the purposes of the initial case management hearing the Listing Judge may order that the prosecution provide to the Designated Judge and to the defence at a time prior to the initial case management hearing a summary of the facts in respect of each charged offence, including a summary of the role of each defendant in respect of any charged offence; a list of prosecution witnesses, with a brief description of the evidence of each witness and its relationship to the prosecution case and a list of exhibits with a sufficient description of them so as to allow the Designated Judge to know the general nature and approximate quantity of exhibits to be produced by the prosecution.

	(d)	The Listing Judge will enquire whether either the prosecution or the defence wish to make submissions to the Designated Judge as to whether the case is to be regarded as a complex commercial crime case and if so may order that written submissions be provided to the Designated Judge at a time prior to the initial case management hearing.

5. When the matter comes before the Designated Judge he will determine, after considering any submissions made by the parties, whether the case is a complex commercial crime case to which this Practice Direction applies.

6. If the Designated Judge determines it is not a complex commercial case, he may list the case for trial, or, if there is reason to do so, order that the case go back before the Listing Judge for listing.

7. If the Designated Judge determines that the case is a complex commercial crime case so that this Practice Direction applies he will, either at that initial case management hearing, or at any subsequent case management hearing, list the case for trial before himself. The Designated Judge may order there be such further case management hearings he deems appropriate.

8.	(a)	All case management hearings before a Designated Judge prior to the trial of a complex commercial crime case will be held in chambers.

	(b)	It is highly desirable that, whenever practicable, the parties be represented at a case management hearing by counsel or other legal representative who it is intended will appear for them at trial.

	(c)	In any event it is expected that those representing the prosecution and the defence at such hearings will be sufficiently prepared for the purposes of the hearing.

	(d)	An accused person has a right to attend all case management hearings but need not attend if he has a legal representative appearing for him at a particular case management hearing.

	(e)	The Designated Judge may give such directions and make such enquiries as to the preparation of the case so as to achieve the objectives of this Practice Direction.

	(f)	Matters which may be dealt with at a case management hearing may include, but are not limited to:

(i) whether any amendments to the existing charges are contemplated.

(ii) the anticipated pleas.

(iii) matters pertaining to representation of the parties at trial and in particular whether there are any difficulties foreseen by the defence in obtaining or maintaining representation.

(iv) whether additional evidence will or may be relied upon by the prosecution and, if so, its nature.

(v) what areas of evidence will or may be agreed (and see 9(b) and (c) below).

(vi) what areas of evidence, if any, will be subject to arguments as to admissibility.

(vii) what witnesses are intended to be called and the order in which it is proposed they will give evidence.

(viii) the prosecution and defence estimates of the length of trial, and for that purpose the Designated Judge may require an analysis of the number and nature of the witnesses to be called and the length of time it is estimated will be required for examination in chief of those witnesses and their cross examination, as well as estimates of time for any other aspect of the trial.

(ix) the organization of exhibits and the method of production of those exhibits, including the provision of exhibits in computerized form to the court or to a jury and what other electronic or visual aids, if any, are proposed for the display of exhibits.

(x) generally as to what technical resources of the court may be required for the calling or presentation of evidence.

(xi) what applications are to be made or matters of law argued and when those applications or matters of law are to be dealt with, and the Designated Judge may direct the provision of such written arguments as he considers appropriate.

9. The Designated Judge may at any time order the prosecution to provide: -

	(a)	an expanded summary of facts or a written opening together with references to exhibits, or to related bundles of exhibits and may further order that the expanded summary of facts or written opening include particulars of the prosecution case against each accused in respect of each charge or count.

	(b)	a list of matters or a draft of facts proposed to be admitted pursuant to section 65C of the Criminal Procedure Ordinance, and may request the defence to state the basis for any refusal to make an admission as to a particular fact.

	(c)	a list of witnesses whose evidence is proposed to be dealt with by way of section 65B of the Criminal Procedure Ordinance, and may request the defence to state the basis for any refusal to agree that the evidence of any witness be dealt with under that section.

	(d)	such schedules or other aides as the Designated Judge regards as assisting the court or the jury in comprehending and retaining the evidence.

10. The Designated Judge may at any time set such time limits he thinks appropriate for the doing of any thing, and may do so during the trial itself.

11. Commencement Date

This Practice Direction will take effect on 2 July 2010.

Dated this 10th day of June 2010

(Andrew Li)
Chief Justice

(i)	whether any amendments to the existing charges are contemplated.
(ii)	the anticipated pleas.
(iii)	matters pertaining to representation of the parties at trial and in particular whether there are any difficulties foreseen by the defence in obtaining or maintaining representation.
(iv)	whether additional evidence will or may be relied upon by the prosecution and, if so, its nature.
(v)	what areas of evidence will or may be agreed (and see 9(b) and (c) below).
(vi)	what areas of evidence, if any, will be subject to arguments as to admissibility.
(vii)	what witnesses are intended to be called and the order in which it is proposed they will give evidence.
(viii)	the prosecution and defence estimates of the length of trial, and for that purpose the Designated Judge may require an analysis of the number and nature of the witnesses to be called and the length of time it is estimated will be required for examination in chief of those witnesses and their cross examination, as well as estimates of time for any other aspect of the trial.
(ix)	the organization of exhibits and the method of production of those exhibits, including the provision of exhibits in computerized form to the court or to a jury and what other electronic or visual aids, if any, are proposed for the display of exhibits.
(x)	generally as to what technical resources of the court may be required for the calling or presentation of evidence.
(xi)	what applications are to be made or matters of law argued and when those applications or matters of law are to be dealt with, and the Designated Judge may direct the provision of such written arguments as he considers appropriate.