HKSAR v. Ma Sin Chi

CACC 424/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 424 OF 2013

(ON APPEAL FROM HCCC NO. 323 OF 2012)

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BETWEEN

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J U D G M E N T

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Hon Lunn VP (giving the Judgment of the Court) :

1.By an amended Notice of Motion, pursuant to section 32(2) of the Court of Final Appeal Ordinance, Cap. 484 the 1^st appellant invited the Court to certify that points of law of great and general importance are involved in the judgment of this Court dated 17 June 2016 quashing his convictions on 6 December 2013, after a trial by P Li J and a jury, of four offences of an agent accepting an advantage, contrary to section 9 of the Prevention of Bribery Ordinance, Cap. 201 on 6 December 2013 and the order that the 1^st appellant be retried. The parties have agreed that the matter be considered and resolved by the Court on the papers.

2.The points of law said to be of great and general importance identified by Mr Bell SC are:

(i)  whether the Court of Appeal erred in principle in the exercise of its discretion in ordering a re-trial of the applicant in failing to consider the eighteen further grounds of appeal for which the applicant had leave.  The Court of Appeal quashed the applicant’s convictions on only two grounds (Grounds 12 and 13) stating in paragraph 114 of the Judgment dated 17 June 2016 that “it was not necessary to consider the other grounds of appeal ”.  The Court of Appeal failed thereby to determine the extent of the procedural and evidential failings within the trial, the reasons for the success of the appeal, and/or the strength of prosecution evidence adduced at trial and in paragraph 22 of its Reasons for Judgment dated 15 July 2016 misdirected itself in a material way;

(ii)  whether the Court of Appeal erred in principle in ordering a re-trial of the applicant when by so doing it permitted the prosecution to supplement a defective case with fresh and new evidence and present a quite different case at a new trial which would be unfair to the applicant who may have to meet a quite different case to that which the jury were invited to consider;

(iii)  whether the Court of Appeal erred in principle in the exercise of its discretion in ordering a re-trial to consider the inordinate and inexcusable delay of the hearing of the applicant’s appeal against his convictions and the further inevitable delay whilst the respondent sought replacement expert evidence and fresh evidence to supplement its defective case and the applicant was afforded a reasonable opportunity to consider the new evidence and the new issues raised, meaning that any retrial would not be heard until some 10 years had expired since the events in question; and

(iv)  whether in all the circumstances, having failed to consider relevant material (the further grounds of appeal) and misdirected itself as the strength of the evidence at the original trial, taking into account all other relevant factors the decision of the Court of Appeal to order the applicant be re-tried was unreasonable in the sense that it was a decision that no other tribunal properly directing itself as to the law and having regard to all relevant factors could have reached.

The respondent’s submissions

3.In opposing the application, Mr Martin Hui SC submitted that the legal principles governing the issue of retrial are well settled.  He suggested that the arguments advanced on behalf of the 1^st appellant went to the issue of “substantial and grave injustice”.  Such questions as were raised went to the application of legal principles relevant to the consideration of whether or not to order a retrial to the facts of this case.

4.Mr Hui invited the Court noted that in its judgment in So Yiu Fung v HKSAR [1] the Court of Final Appeal said of its role:[2]

“ This Court’s primary role in the administration of criminal justice is to resolve real controversy on points of law of great and general importance.  For this Court does not function as a court of criminal appeal in the ordinary way. However the “substantial and grave injustice” limb of s. 32(2) exists as a residual safeguard to cater for those rare and exceptional cases in which there is a real danger of something so seriously wrong that justice demands an enquiry by way of a final criminal appeal despite the absence of any real controversy on any point of law of great and general importance.”

As to question (i)

5.In respect of the issues raised by question (i), Mr Hui reminded the Court that the hearing of the applications for leave to appeal had occupied the Court over a period of no less than seven days.  The statement in the judgment of the Court that the conclusions reached by the Court in respect of the “acts of other assistance” and the judge’s directions to the jury on the credibility of Mr Cheng rendered it “not necessary for us to consider the other grounds of appeal” was not to be taken as meaning that the Court did not have regard to the issues there raised, in particular the strength of the prosecution case, when considering the issue of retrial.

As to question (ii)

6.Of the fact that the order for the retrial of the 1^st appellant was made by the Court in the knowledge that the prosecution intended instructing a second expert witness to give his opinion in respect of the area of the prosecution case considered by Mr Cheng, Mr Hui said that it was as yet unknown what he might say, but if any prejudice or unfairness resulted to the 1^st appellant that was a matter that could be addressed by the judge at the retrial.

As to question (iii)

7.Of the issue of the lapse of time since the events in question and of delay Mr Hui pointed out that the Court had considered those issues specifically and found that the prosecution was not culpable of any undue delay in the investigation or in bringing the matter on for trial.  The Court noted that the delay in hearing the appeal was “in significant measure due to the fact that the parties estimated that no less than five days was required for the hearing.”

As to question (iv)

8.Mr Hui submitted that, in effect, by question (iv) it was argued simply that the decision of the Court to order a retrial of the 1^st appellant was perverse.

A consideration of the submissions

9.With respect to Mr Bell, there is compelling force in the submissions of Mr Hui that the issues, identified as giving rise to points of law of great and general importance, in fact go to the issue of substantial and grave injustice.  The considerations relevant to the Court of Appeal ordering a retrial are well-known.  Indeed, they were summarised in the Reasons for Judgment, dated 15 July 2016.  In applying the law to the facts of the case against the 1^st appellant, the Court had the benefit of a hearing which lasted seven days, during which all the multiple arguments advanced on behalf of the 1^st appellant and his co-appellant were examined exhaustively.

Conclusion

10.We are satisfied that no points of law of great and general importance are identified in the questions posed by the 1^st appellant and we decline to certify otherwise.

Costs

11.The respondent having indicated that it seeks an order for the costs of this application, we order that, if the 1^st appellant wishes to oppose the application he is to inform the court that is the case and file any written submissions in opposition, limited to 10 pages in length, within 14 days hereof.

Mr Martin Hui SC, DDPP and Ms Peggy Lo, SPP, of Department of Justice, for the respondent

Mr Adrian Bell, SC and Mr Edward Chan, instructed by Lee & Chow, for the 1^st appellant

[1] So Yiu Fung v HKSAR (1999) 2 HKCFAR 539.

[2] So Yiu Fung v HKSAR, pages 541 I - 542 B.