HKSAR v. Zhou Limei（周禮梅）

FAMC No 3 of 2019

[2019] HKCFA 41

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 3 OF 2019 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACC NO 254 OF 2017)

_______________________

_______________________

_______________________

DETERMINATION

_______________________

Mr Justice Cheung Acting CJ:

1.This is an application for leave to appeal against an order made by the Court of Appeal[1] for a second retrial[2] in a trafficking case.

2.The applicant bases her application, made under the “substantial and grave injustice” limb, on four grounds.

3.The first and second grounds, concerning the Court of Appeal’s approach to exercising its discretion to order a second retrial, are not reasonably arguable.  Nor is the fourth ground based on negative publicity.  The related application to adduce newspaper articles and internet materials in support of that ground is refused.

4.However, we give leave to the applicant to adduce the expert psychiatric report of Dr Tsang Fan Kwong dated 6 March 2019 in relation to the third ground, that is, the undue hardship and unfairness allegedly occasioned to the applicant by the second retrial order, particularly given her psychiatric condition and the further deterioration of her condition said to have resulted from the order.

5.We give leave to appeal solely on the ground that it is reasonably arguable that substantial and grave injustice has been done in making an order for a second retrial without adequate consideration of the hardship factor.

6.We direct that in the event that the respondent wishes to examine the applicant, there be a joint examination and joint expert report by Dr Tsang and the expert appointed by the respondent on the current psychiatric condition    of the applicant and also on her fitness to stand trial for a third time,which report shall be filed with the court no later than 9 January 2020; and both Dr Tsang’s report dated 6 March 2019 and the joint expert report be admitted in evidence for consideration at the hearing of the appeal.

7.The appeal will be heard on 27 April 2020.

Mr Shahmim K Khattak (Kelly Lam), Mr Anthony Lai and Ms Holly Cheng, instructed by Annie Leung & Co, assigned by the Director of Legal Aid, for the applicant

Mr Franco Kuan, SADPP (Ag), of the Department of Justice, for the respondent