Billy Kay. He contended that there was no real possibility that the jury would have arrived at a different verdict had the undisclosed unused material been available to the defence at trial.
49. In her submissions at the hearing of 7 March 2017, Ms Lai confirmed the respondent’s position that none of the material to which Mr Cheung referred had been disclosed to the defence by the prosecution and accepted that the material was such that it should have been disclosed to the defence. She acknowledged the responsibility of the respondent for the failure to disclose the unused material. However, she submitted that there was no evidence of bad faith on behalf by the police or the Department of Justice. Nevertheless, Ms Lai conceded that the appeal ought to be allowed on Ground 1.
50. In her written submissions, Ms Lai acknowledged “…the importance of full and timely disclosure as a pivotal safeguard for the right to fair trial enshrined in Article 87 of the Basic Law.” She accepted that guidance for an understanding of the ambit of the duties of the prosecution in respect of disclosure of unused material to the defence was to be found in the judgment of the Court of Final Appeal in HKSAR v Lee Ming Tee.[1] She contended that a succinct exposition of the “… guiding principles on disclosure” was to be found in the ‘Prosecution Code’[2] and in its earlier predecessor ‘The Statement of Prosecution Policy and Practice’.[3]
- ↑ HKSAR v Lee Ming Tee (No 1) (2003) 6 HKCFAR 336.
- ↑ ‘Prosecution Code’ (2013).
- ↑ The Statement of Prosecution Policy and Practice (2009).
