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Appeal Bid By Absent Tobacco Tycoon Fails

Ruling on bugging of defendant upheld

Yvonne Tsui – Updated on Jun 18, 2008

The appeal court yesterday rejected an application by the director of a tobacco company – who has absconded – to argue in the top court against the continuation of his criminal trial in the District Court.

The challenge was mounted after lawyers cited what they said was a deliberate breach of legal privilege, by anti-corruption officers who bugged the office of a defendant, as grounds for halting the trial. The trial judge rejected that argument, and a subsequent request for a judicial review of that decision was also rejected.

Lu Dayong, 57, former executive director of Nanyang Brothers Tobacco Co Ltd, failed to appear last week at a District Court hearing on his alleged involvement in the illegal smuggling of Double Happiness cigarettes. A warrant for his arrest was issued.

Lawyer Martin Lee Chu-ming SC said outside court that Lu’s failure to appear at that hearing had not affected the application. He said he had been given detailed instructions on the application before Lu absconded.

Mr Lee, who acted for Lu and two other applicants – both co-defendants in the trial – in the judicial review application, argued yesterday that legal privilege should be recognised as an absolute right.

The appeal stemmed from a ruling on May 16 by Mr Justice Michael Hartmann, who refused to grant leave for a judicial review of District Court Judge Joseph Yau Chi-lap’s decision on April 3 not to stay the criminal proceeding.

Mr Justice Hartmann said it would be inappropriate for him to hear the case as Judge Yau had properly exercised his power to decide on the application for a stay of proceedings. He said the merits of the decision should be heard in the Court of Appeal upon a criminal appeal, not in a judicial review.

Upholding that decision, yesterday’s ruling by Mr Justice Michael Stuart-Moore and Mr Justice Frank Stock, of the Court of Appeal, brought an end to the matter.

The criminal trial will continue in the District Court next Wednesday.

Lu – along with Ko Kit, 36, director of Hang Chun Trade Development, and Chan Kai-san, 37, a sales manager for the same firm – had asked for a stay of the criminal proceedings on the grounds that the Independent Commission Against Corruption’s covert surveillance operation “constituted an affront to public conscience” by bugging a conversation between Ko and her lawyer.

Lu and Ko face one count of conspiracy to arrange for Lu to accept an advantage. All three face a charge of conspiracy to defraud and another count of conspiracy to arrange for Lu to accept an advantage.

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