53. Particularly, undue delay itself would amount to a breach of
the standards of fairness under the Bill. This is different from
the previous standard under which some positive proof of
prejudice would take priority in any consideration of unfairness
or oppression.
for
54. Further, the concept of "equality of arms" now assumes
central importance in determining whether any trial would be a
"fair" one. Under the previous standard, the Defence
example, required to show the "relevance" of any missing
whereas under the Bill, the Prosecution will
document,
was,
have a
to the
court would
their
duty to ensure that equal access to documents be given
accused. Also, if the Defendant was not given the opportunity to
be present when witnesses were examined, the trial
under the previous regime have a discretion to exclude
evidence at trial. Under the Bill, however, the Defence
right to be present, the denial of which
ipso facto unfair.
has a
would render any trial
an
me to
if
taken
55. In an application of this nature, it is necessary for
rely on
accumulation of factual matters which,
individually, might risk being regarded as insufficient for the
purpose of showing injustice or oppression. Recent events which,
cumlatively, triggered the present application, include:
(1) the said admission by Leading Counsel for the Hong Kong
Magistrate Sinclair on 10th June 1991 (see
government
before
23