The trial of Kwong Hing International director Li Man-tak and former UBS financial analyst Nicholas Tan has been in court for 18 days but has yet to formally begin while district court judge Fergal Sweeney has heard arguments relating to ICAC investigative practices. The hearing was adjourned Monday as government lawyers and the judge prepared for a defense application to stay the proceedings.

The ICAC case was battered last Friday when Sweeney ruled that secret surveillance tapes entered into evidence are a breach of privacy protections under the Basic Law.

In the absence of legal provisions to review the use of bugging devices, Sweeney ruled that the ICAC's "unfettered and unsupervised'' power to invade privacy is unconstitutional.

Senior counsel for Li, Cheng Huan, asked Monday that the trial be suspended indefinitely, claiming that the ICAC and the prosecution failed to fully disclose additional materials relevant to the case.

Prosecution counsel David Fitzpatrick said he needed extra time to review the complaint. He said will confer with government legal advisers.

Sweeney must conduct another hearing into the merits of the application before deciding whether the trial of Li and Tan will proceed. If the application is granted, the trial may be suspended indefinitely, or closed completely, allowing the defendants to walk free.

The ICAC charged Li and Tan with conspiracy to defraud, alleging that Li bribed several fund managers and also requested that Tan produce a financial report that falsely valued Kwong Hing shares. The trial was scheduled for 20 days, but the 18 days have focused instead on ICAC practices.

Sweeney refused Friday to admit as evidence six video and oral recordings, ruling that on each occasion there was an element of entrapment, a neglect of the suspects' right to silence and legal representation and a possibility of threats from the ICAC. Sweeney also observed that in the standard form from which ICAC officers read the rights to suspects, ``whether by accident or design, there is a glaring omission.''

The officers failed to inform the suspects that they have a right to remain silent, a right to not give an interview, and a right to legal advice before they are interrogated, Sweeney said.

At the end of Friday's hearing, Cheng said he would make a formal application for a stay of proceedings, saying that it was only during the course of these proceedings that it emerged the ICAC destroyed several audio recordings involving key prosecution witness Vincent Yum.

Yum is a former suspect who has been granted immunity for his cooperation with the ICAC. Since Yum is the only witness, and one that has been granted immunity, Cheng said he cannot conduct a fair cross-examination without all the relevant materials.

Cheng claims that his solicitors have been requesting a full disclosure of materials since the end of August last year.

ICAC principal investigator Tony Lui revealed under cross-examination April 8 that the agency had in fact many more video and oral recordings unknown to defense lawyers. After inquiry, defense lawyers discovered that around 20 to 30 items relating to the key prosecution witness have been destroyed, Cheng said Monday.

Last week, Director of Public Prosecutions Grenville Cross said issues of full disclosure are problematic and subject to continual changes.

He said a Standing Committee on Disclosure has been set up to report every six months on developments from around the common law world.

The hearing of the application for stay of proceedings will begin today in the District Court.

albert.wong@singtaonewscorp.com