HKSAR v. Lam Chung Pan and Another
Read the full judgment text of CACC 285/2018 on BabelCite. This Court of Appeal judgment was delivered on 15 October 2021 before Hon Chu, D Pang and A Pang JJA.
Criminal law – drug trafficking – conspiracy – retrial – costs – interests of justice – jury directions – bail conditions – Criminal Procedure Ordinance (Cap 221) s.83E(1) – Costs in Criminal Cases Ordinance (Cap 492) s.9 – Applicants convicted of conspiracy to traffic ice, appeal allowed due to jury direction errors – Retrial application granted in line with public interest given seriousness of offence and strength of prosecution case – Costs of appeal allowed – Costs of original trial in cause of retrial – Costs of bail application refused due to applicant's repeated breaches of bail conditions
Legal issues: Retrial application · Costs of original trial · Costs of bail application
Outcome: Retrial ordered; Costs application partially allowed
Cited by 1 case · Cites 10 cases
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[English Translation – 英譯本] CACC 285/2018 [2021] HKCA 1507 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL CASE NO. 285 OF 2018 (ON APPEAL FROM HCCC NO. 219 OF 2016) ____________________
____________________ Before: Hon Chu, D Pang and A Pang JJA in Court Date of Judgment: 15 October 2021 JUDGMENT (Retrial and Costs Application) Hon Chu JA (giving the judgment of the Court): Introduction 1.The 1st and 2nd applicants were jointly charged with one count of conspiracy to traffic in a dangerous drug. The jury convicted them unanimously (7:0) and by a majority verdict (5:2) respectively after trial in the Court of First Instance of the High Court, and the two were each sentenced to 27 years’ imprisonment. They both applied for leave to appeal against the conviction. 2.After the hearing, this Court (Hon Yeung VP, Chu and D Pang JJA) delivered the judgment[1] on 22 July 2021, allowing the two applicants’ appeal applications and quashing their convictions. 3.The facts and the prosecution evidence of the present case are stated in paragraphs 4 to 47 in the judgment of this Court, which I shall not repeat here. 4.On 13 August 2021, the respondent made an application to remit the case of both applicants to the Court of First Instance of the High Court for retrial on the amended charge of the original trial. 5.On the other hand, on 27 July 2021, the 1st applicant made applications pursuant to section 9 of the Costs in Criminal Cases Ordinance, Cap 492, Laws of Hong Kong, against the respondent for (i) the costs of the original trial, and (ii) the costs of the appeal. 6.According to the directions[2] of this Court, both applications shall be dealt with by way of written submissions. We hereby give the judgment on these two applications. Application for retrial 7.Regarding the application for retrial, the 1st applicant stated in his skeleton submissions that whether a retrial should be ordered is a matter of discretion which depends entirely on what justice requires, and apart from that, he made no further submissions, while the 2nd applicant has not made any submission in this regard. 8.The respondent’s main grounds for the retrial application are as follows:
9.The respondent cited R v Holgate (No. 2)[3], Ting James Henry v HKSAR[4] (quoting Au Pui Kuen v Attorney General of Hong Kong[5]) and the judgments of the Court of Appeal[6] and the Court of Final Appeal[7] in 2015 in HKSAR v Bian Zhenju. 10.Section 83E(1) of the Criminal Procedure Ordinance (Cap 221) provides that the Court of Appeal may order a retrial if the interests of justice so require. 11.Recently, the Court of Final Appeal in HKSAR v Zhou Limei[8] and HKSAR v Liang Yaoqiang[9] reiterated the legal principles of ordering a retrial, including the principles and the cases cited above by the respondent. 12.As stated in the skeleton submissions of the 1st applicant, whether the Court of Appeal should exercise discretion to order a retrial depends entirely on what the interests of justice require. 13.The Court of Final Appeal emphasized in the judgment that all relevant factors must be taken into account in considering what the interests of justice require. As circumstances vary from case to case, the relevant factors to be considered and the weight given should be different. Generally speaking, the court should consider the circumstances and interests of the accused on the one hand, and the public interest on the other. The former includes avoiding unnecessary delay in criminal proceedings, which will cause oppression, as well as suffering that a criminal trial undeniably brings to the accused to a certain extent. The latter concerns bringing those who are guilty of serious crimes to justice, and they should not be allowed to evade legal responsibility because of technical errors that occur during the course of a trial or directions given by the judge to the jury. In this respect, the strength of the prosecution case is a relevant factor. 14.In the present case, the applicants have neither made any statements in respect of their personal circumstances or whether a retrial may cause any prejudice or unfairness to them, nor have they raised any substantial objection to the respondent’s submissions on public interest and the chance of conviction in a retrial. 15.In our view, in light of (i) the count in the present case being very serious; (ii) the leave to appeal being granted by this Court on the ground that the trial judge did not give proper and sufficient directions to the jury in respect of the evidence of “uncharged acts” and “post-offence conduct”, which was revealed in PW12’s testimony, and the jury might have misused the evidence in these two areas, thereby affecting their assessment of the reliability and credibility of the prosecution case or the defence evidence; and (iii) the evidence in this case, including the circumstantial evidence and PW12’s testimony, an order for retrial is in line with public interest. 16.Furthermore, there is nothing in this case to show that, given the circumstances or interests of the two applicants or the presence of other factors, injustice would be caused by a retrial. 17.Therefore, the respondent’s application is granted by this Court and the applicants’ case is remitted to the Court of First Instance for a retrial. 1st applicant’s application for costs 18.The respondent does not object to the 1st applicant’s application for costs for the appeal but objects to his application for the costs of the original trial (including the costs of the bail application pending trial). 19.The 1st applicant submitted that according to the principle affirmed by the Court of Final Appeal in Tong Cun Lin v HKSAR[10], Ting James Henry v HKSAR (No. 2)[11] and HKSAR v Pang Hung Fai (No. 2)[12], costs should be awarded to an acquitted applicant unless there are positive reasons to depart from the principle. No such reasons can be found in the present case. The 1st applicant also submitted that although he was legally aided, he was required to make contribution towards his costs. Moreover, the legal aid certificate did not cover the bail application pending trial and he paid for the solicitors and counsel engaged for the application. 20.The respondent agreed to the legal principle cited by the 1st applicant but took the view that the 1st applicant’s conduct in the present case aroused suspicion and constituted exceptional circumstances that departed from the basic principle. In the respondent’s view, as the 1st applicant’s bail application pending trial is self-induced, even if he is awarded the costs of the original trial, the application for the costs of the bail application should be struck out. 21.The respondent submitted that the 1st applicant’s conduct aroused suspicion mainly because of the oral admission he made upon arrest and the detailed admissions he later made in the video recorded interview. At the original trial, the 1st applicant challenged these admissions, including their voluntariness and authenticity. 22.In our view, as the case will be retried, it is inappropriate to form any opinion at the present stage on the evidence in dispute in the case. Therefore, it is inappropriate to give a conclusive ruling on whether in this case the 1st applicant’s conduct aroused suspicion. For that reason, we order that the 1st applicant’s application for the costs of the original trial be in the cause of the retrial. If the 1st applicant is acquitted in the retrial, he will be awarded the costs of the original trial; but if he is convicted after retrial, he will not be awarded the costs. 23.Regarding the 1st applicant’s costs of the bail application pending trial, the respondent submitted that the 1st applicant was originally granted bail in the magistracy, but he breached the bail conditions several times afterwards, such as being late for the hearings, failing to report to the police station and so on. When the case was committed to the High Court, the 1st applicant was absent from the scheduled hearing. He was therefore arrested and his bail was revoked. After that, he applied for bail three times and was represented by counsel only on his second application dated 22 September 2016, but his application was refused because he had breached the bail conditions several times. Finally, the 1st applicant was granted bail on 17 January 2017. 24.We agree that, in the above circumstances, if the 1st applicant had not repeatedly breached the bail conditions, his bail pending trial would not have been revoked. Accordingly, the costs of his bail application were caused by his own conduct. His application for the costs of his bail application pending trial is refused. Conclusion 25.We hereby make the following orders:
Ms Ching Wai Ming, Jasmine, Senior Public Prosecutor, of the Department of Justice, for the respondent Mr Andy Hung,instructed by Messrs Chan & Tsu, assigned by the Legal Aid Department, for the 1st applicant Ms Memi M. W. Ng,instructed by Messrs Howell & Co, assigned by the Legal Aid Department, for the 2nd applicant Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Walter Lee, solicitor. [2] Para 117 of the judgment, and the directions given by Hon Yeung VP on 28 July 2021. [3] [1996] 3 HKC 324, 325 and 326 [4] (2007) 10 HKCFAR 632, [49] [5] [1979] HKLR 16, 19 [6] [2015] 2 HKLRD 1089, [41] – [43] [7] (Unreported) FCMC 30/2015, judgment dated 4 November 2015 [8] (2020) 23 HKCFAR 169, [9] [9] [2021] HKCFA 26, [31] and [32] [10] (1999) 2 HKCFAR 531, 535 [11] (2007) 10 HKCFAR 730, [8], [10] and [16] [12] (2015) 18 HKCFAR 1, [4] and [5] |
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