HKSAR v. Wong Chun Wai

CACC 238/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 238 OF 2016

(ON APPEAL FROM DCCC 54/2016)

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D E C I S I O N

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1.On 7 July 2016, after a 5-day trial before Deputy Judge Joseph To in the District Court, the defendant was acquitted of one charge of ‘dangerous driving causing death’.

2.By a written application dated 1 August 2016, the prosecution applied for an extension of time to appeal against that acquittal by way of case stated.  Since, by virtue of s 84 of the District Court Ordinance (Cap 336), such an appeal has to be lodged within 7 days of the reasons for verdict, the prosecution was out of time by 14 days.

3.By a written letter dated 9 August 2016, I directed the prosecution to clarify (a) the basis of their application, in particular the specific errors of law that the Deputy Judge is said to have committed, and (b) the reasons why Counsel prosecuting on fiat was unable to immediately detect those errors.

4.On 10 August 2016, the prosecution filed their clarification in the form of a 10-page submission, with authorities.

5.By a letter dated 15 August 2016, I made the further direction that the defendant’s solicitors, who had all along been circulated copies of the relevant correspondence, do respond to the prosecution’s application within 14 days of my letter.  I directed that unless the parties so applied, there would be no oral hearing and the matter would be determined on paper: see DPP v Coleman [1988] 2 Cr App R 7.

6.On 26 August 2016, the defendant’s solicitors did respond.  They resisted the prosecution’s application, with reasons.

7.Having considered the parties’ submissions, I have the following observations:

(a)   It appears the prosecution is right that the Deputy Judge had overlooked the alternative of convicting the defendant of the lesser charge of ‘dangerous’ or ‘careless driving’.  There is no indication that the Deputy Judge had ever so directed his mind.

(b)   Fiat Counsel’s failure to spot the Deputy Judge’s error was the first and most important cause of delay.  The steps and caution taken by the prosecution, after they had been put on notice of the dubiety of the verdict, were proper and understandable.

(c)   Although an acquitted defendant is entitled to a certain expectation of finality of proceedings upon the expiry of the appeal period, it is essentially a balancing exercise.  There is public interest in bringing the prosecution of a serious offence to a proper and lawful conclusion.

(d)   The delay of 14 days was not inordinate.

(e)   There is no prejudice on the defendant in allowing the prosecution’s application out of time.  The situation facing him is exactly as it might be if the application had been brought within 7 days.

8.For the above reasons, I allow the prosecution’s application to appeal by way of case stated out of time.

Miss Anna Lai, SC, DDPP (Ag.) of the Department of Justice, for the applicant

M/s M.K. Lam & Co, for the respondent