香港特別行政區 訴 吳耀宗

DCCC 1129/2022

[2025] HKDC 223

香港特別行政區

區域法院

刑事案件 2022 年第 1129 號

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裁定

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1.這是辯方永久擱置法律程序的申請。

2.被告人被控：

(1)  一項「危險駕駛引致他人死亡」，違反香港法例第 374 章《道路交通條例》第 36(1)  條（控罪 1）；

(2)  一項「危險駕駛引致他人身體受嚴重傷害」，違反香港法例第 374 章《道路交通條例》第 36A 條（控罪 2）。

背景

3.本案源自一宗交通意外。控辯雙方對本案背景沒有爭議。

4.2018 年 12 月 10 日約 1350 時，被告人將一輛登記號碼為 HF 365 的私家小巴（小巴）停泊在北角長康街後離去。不久後，被告人返回小巴，站在旁邊並打開駕駛者車門。被告人關上駕駛者車門後，小巴突然向前滑行並加速。當被告人發現小巴下滑時，嘗試站在小巴前面阻擋，唯不成功，最後被捲入車底，被小巴拖行約 20 米後倒地。小巴在無人駕駛的情況下，一路繼續向前滑行，最後在希和街與英皇道交界附近鏟上行人路，撞入一個住宅大廈入口後停下，造成 5 人死亡及 2 人嚴重受傷。被告人亦隨即被送往東區醫院治療。

5.2019 年 1 月 29 日，警方就「沒有固定汽車制動器材離開車輛」罪與被告人進行警誡會面。

6.由 2018 年 12 月 10 日至 2019 年 5 月 20 日，警方進行了調查，並向目擊事發經過的市民、警員、消防員及照顧各死者和傷者的醫護人員錄取供詞，並索取了兩名專家證人的意見。運輸署處理高級驗車主任何元宗先生是講述小巴性能的專家。政府高級化驗師陶志恒博士（陶博士）則就事發的閉路電視片段提供專家意見。

7.何元宗先生指，小巴並沒有任何機械缺陷；小巴的手掣動桿最高可拉起 8 格。測試中發現，小巴如果在一個斜度為 6.07 度的斜坡上，要起碼將手掣拉起到第 5 格方可令小巴安全地停泊。陶博士在進行了車輛模擬及分析了有關的閉路電視錄影截圖後指，當時在小巴向下滑動前，手制動桿可能在第 4 格。

8.2019 年 5 月 10 日，警方以涉嫌「危險駕駛引致他人死亡」、「危險駕駛引致他人身體受嚴重傷害」及「沒有固定汽車制動器材離開車輛」拘捕被告人。

9.警方獲取律政司的法律意見後，於 2019 年 6 月 10 日向被告人發出傳票，指他違反根據《道路交通條例》（第 374 章）制定的《道路交通（交通管制）規例》（第 374G 章）第 44(1)(b)  條及第 61(2)  條，即小巴裝配一個固定的制動器，而被告人無合理辯解，在離開車輛時，未有固定該制動器，以便有效地防止至少 2 個車輪轉動。

10.被告人於 2019 年 9 月 9 日在東區裁判法院以書面形式認罪（因被告人行動不便，無法到法院出席有關聆訊），並同意有關案情，被判處罰款港幣 2,000 元。

11.於傳票案件中，傳票的指控如下：

「有人提出告發，指稱你在 2018 年 12 月 10 日下午 1 時 50 分於長康街（北行）與堡壘街交界，身為在道路上展示登記號碼 HG 365 屬私家小巴的掌管人，而該車輛裝備有一個固定的制動器，你無合理辯解而在離開車輛時，未有固定該制動器，以便有效地防止至少 2 個車輪轉動」。

12.於傳票案件中，被告人承認的案情如下：

“Brief facts of case

The incident

i) The 1^st Impact (Outside No.19 Cheung Hong Street)

1.  At about 1350 hrs on 2018-12-10, Deft parked his private light bus (HG 365)  (V)  outside No. 19 Cheung Hong Street (northbound), North Point and in front of a PW11’s private bus (TJ 1679). Thereafter, Deft left V without passenger on board.

2.  At about 1354 hrs the same day, Deft returned to V and opened the driver door. At the same time, a MGV (UL 4504)  passing the offside of V thus Deft closed the driver door of V in a hurry. However, after the driver door was closed, V started to roll forward. Deft attempted to stop V but in vain. As a result, Deft was knocked down by V and trapped underneath.

ii)  The 2^nd Impact (Outside No. 23B Cheung Hong Street)

3.After the 1^st impact, V continued rolling downhill along Cheung Hong Street. Upon reaching outside No. 23B Cheung Hong Street, the offside front of V collided with the nearside rear of a taxi DH 2868 which was driven by PW16 and traveling along the same road in same direction.

iii)  The 3^rd Impact (Outside No. 31 Cheung Hong Street)

4.  After the 2^nd impact, V continued rolling downhill along Chung Hong Street. Upon reaching outside No. 31 Cheung Hong Street. The nearside body and nearside front of V hit two pedestrians (PW2 and PW1)  who were on the pavement. As a result, PW1 was trapped underneath of V.

5.  Shortly prior to the 3rd impact, Deft was found rolling out from the offside underneath of V and then lying on the road outside No. 31 Cheung Hong Street.

iv)  The 4^th Impact (Cheung Hing Street junction with King’s Road)

6.  After, the 3rd impact, V continued rolling downhill along Cheung Hong Street. Upon entering to the junction with King’s Road (westbound), the offside of V collided with the nearside of a taxi TV 1726 which was driven by PW20.

v)  The 5^th Impact (Hei Wo Street near junction with King’s Road)

7.  After the 4^th impact, V continued rolling forward and eventually came to a halt after knocking down another 13 pedestrians (PWs 3 - 9 and dec’ds 1 - 5)  at Hei Wo Street.

8.  At 1402 hrs, PW22 and party of Fire Service arrived the scene. Upon checking, PW22 found the handbrake of V was not fully applied and the gear level of V was in neutral position. PW22 then pushed the gear level forward and pulled the handbrake lever up three more levels to secure the stationary position of V.

9.  At 1415 hrs, PW29 and party of Traffic Hong Kong arrived the scene. Upon checking, PW29 found the car key of V was still inserted in the ignition switch of V.

10.  At scene, PW23 and PW29 took 49 and 130 photos showing different view of scene (E1 and E2).

Medical Reports

11.  During the accident, Deft, PW1 - 9 sustained different degree of injuries (E15 to E33). Dec’d 1 was certified death at scene (E15)  while Dec’ds 2 - 4 and Dec’d 5 were certified death at the hospital on the same day (E16 - E18)  and 2019-01-08 (E19)  respectively.

Police Investigation

12.  Police investigation revealed that:

-  the 1^st impact was witnessed by a nearby pedestrian. (PW12);

-  The 1^st impact was also partly captured / captured by the car camera of MGV UL 4504, the car camera of private car PG 9658 (E9)  and the CCTV of a Tyre Shop at No. 2-4 Fort Street (E10);

-  The 2^nd impact was partly captured / captured by the car camera of Taxi DH2868 (E7), the car camera of MGV UL 4504 (E8)  the car camera of private car PG 9658 (E9);

-  The 3^rd impact was witnessed by PW17 and PW18 who were the staff of nearby shops at No. 31 Cheng Hong Street and No. 35 Cheung Hong Street respectively;

-  The 3^rd impact also captured by the car camera of Taxi DH 2868 (E7), the car camera of MGV UK 4504, the car camera of private car PG 9658 (E9)  and the CCTV footage of Sham Hotel at No. 30 King’s Road (E11);

-  The 4^th impact was captured by the car camera of Taxi DH 2868 (E7), the car camera of MGV UL 4504 (E8)  and the car camera of private car PG 9658 (E9);

-  Other than PWs 3-9, the 5^th impact was partially witnessed by PW21 who was the owner of a stall at No. 291 King’s Road.

13.  PW24 took over the investigation and prepared a scaled sketch of the scene (E3). On 2019-01-29, PW24 interviewed Deft inside PYNEH and took a record of interview for the offence of “Vacating vehicle without setting handbrake”. Under caution, Deft had nothing to reply (E4).

14.  PW24 also received “Notice Requiring Identification of Driver (Pol. 571)” that completed by PW10, the owner of V and Deft and re-confirmed that Deft was the driver of V at the time of accident (E13 & E14).

15.  On 2019-05-10, Deft was arrested by PW28 for the offences of “Dangerous driving causing death”, “Dangerous driving causing grievous bodily harm” and “Vacating vehicle without setting handbrake”. Under caution Deft had nothing to reply (E5 & E6).

Motor Vehicle Examination

16.  On 2018-12-12, PW30 examined V at Quarry Bay Vehicle Detention Pound and found V was free from any mechanical defects (E12).

17.  PW30 conducted a test on V and suggested that V could be held stationary at slope of 6.07 (6.20 at 1st impact point)  when the parking brake operating lever was, at least, at the 5^th ratchet tooth position (maximum 8^th ratchet tooth position).

Forensic Examination

18.  PW31 conducted a scene visit and examined the relevant material that provided by police with below findings:

(i)  Before the driver door of V was closed, V apparently remained stationary. However, V started to roll forward after the driver door was closed; and

(ii)  The handbrake level of V was probably at the 4th ratchet tooth position before V started to roll downhill along Cheung Hong Street.

19.  At the time of accident, the road surface was dry and the traffic condition was light.”

13.死因裁判法庭於 2022 年 5 月 4 日展開有關 5 名死者的研訊（CCD1 1068、1076、1078/2018 及 102、273/2019）。2022 年 6 月 16 日，聆訊期間，律政司稱需時審視消防隊目、警員等證人的供詞，並調查是否是嚴重罪行，引用香港法例第 504 章《死因裁判官條例》申請將研訊押後，並獲批准。

14.2022 年 9 月 14 日，被告人因「危險駕駛引致他人死亡」及「危險駕駛引致他人身體受嚴重傷害」再次被逮捕及進行警誡錄影會面。於錄影會面後，被告人隨即被正式落案起訴兩項控罪，即「危險駕駛引致他人死亡」（本案控罪 1）及「危險駕駛引致他人身體受嚴重傷害」（本案控罪 2）。

15.2022 年 9 月 15 日，被告人出席於東區裁判法院的提訊。

16.2023 年 6 月 12 日，被告人的代表律師向律政司致函，提出普通法中「禁止一罪兩審」規則（the rule against double jeopardy）的問題，並引用了終審法院於 Yeung Chun Pong v Secretary for Justice (2009)  12 HKCFAR 867 中的判詞，亦要求律政司提供在 2022 年控告被告人更嚴重罪行的理由。於信中辯方指：

“DCCC1129/2023

HKSAR v Ng Yin Chung

Next mention hearing 29 June 2019 at 11am

1. As you are aware, I am the Counsel assigned by the Legal Aid Department to act for the Defendant.

2. The Defendant was charged with Summons ESS20488/2019 for contravention of Regulations 44(1)(b)  and 61(2)  of the Road Traffic (Traffic Control)  Regs. made under the Road Traffic Ordinance, Cap. 374. The Summons was laid on 6 June 2019 (“the Summons”)  upon the direction of the Department of Justice to which he pleaded guilty by way of a letter dated 26 August 2019. The Defendant was convicted on 9 September 2019 and was fined HK$2,000. The particulars of the charge in the Summons are as follows:-

“Information has been laid THAT YOU on 10/12/2018 at 1:50 pm at CHEUNG HONG STREET (NORTH BOUND)  JUNCTION WITH FORT STREET being the person in charge of PRIVATE LIGHT BUS displaying registration mark HG 365, on a road the vehicle being fitted with a brake capable of being set, did, without reasonable excuse, vacate the vehicle without having set the brake so as effectually to prevent at least 2 of the wheels from revolving.”

3.  The Summons and the Brief Facts are enclosed for your easy reference (Annex 1).

4.  On 14 September 2022, after the Defendant attended cautioned interviews for the current charges, namely (1)  dangerous driving causing the death of five persons, and (2)  dangerous driving causing grievous bodily harm to 2 persons, he was immediately charged for the offences. On the following day 15 September 2023, the Defendant first appeared at the Eastern Magistracy for the two charges. The Summary of Facts was dated 23 December 2022.

5.  We have compared the Brief Facts and the Summary of Facts, the list of prosecution witnesses, experts and evidence set out therein respectively. It is abundantly clear that the prosecution case in both cases arises from the same set of facts, relying on the same, or at least very substantially the same evidence, and in particular:

(1)  On 29 January 2019, the Defendant was interviewed under caution for the offence set out in the Summons. On 10 May 2019, the Defendant was arrested for dangerous driving causing death of the 5 persons named in Charge 1 and dangerous driving causing grievous bodily injuries and was interviewed under caution. It is submitted therefore on 6 June 2019, the date of laying the Summons, there was sufficient evidence (see the list of prosecution witnesses and the evidence)  to formally lay these much more serious charges, but for reasons unknown to us, the prosecution decided not to proceed with the charges and instead charged him with the Summons. Yet in September 2022, the police suddenly re-arrested the Defendant formally charged him with these offences. As to the timing of the charges, it is noted that the Defendant was charged after the coroner inquest of the deceased persons named in Charge 1 which took place in May 2022.

(2)  Most significantly, the prosecution relied on the same conclusions reached by the same two experts, namely, Dr. Tao Chi Hang and Mr. Ho Yuen-chung. Brief facts of Summons at paras. 17 and 18; Summary of Facts of the District Court case at paras. 11, 12 and 13 (under the heading “Cause of the accident”). The prosecution relies on the conclusions of these experts as the basis of the charges in both the Summons and the District Court charges.

(3)  Both Dr. Tao and Mr. Ho gave supplemental statements after they gave evidence at the coroner inquest to clarify their evidence given at the coroner inquest in May 2022 and before the laying of the charges in September 2022. However, the contents of their supplemental statements add nothing of substance to the prosecution case at the District Court. It remains to be the essence of the prosecution case that the Defendant vacated the bus without having set the brake so as to effectively prevent the wheels from revolving and therefore the bus rolled downhill, causing deaths and injuries.

(4)  In any event, it is submitted the Defendant will never have a fair trial at the District Court as he has already pleaded guilty to the Summons and admitted to facts set out in the Brief Facts therein and was sentenced on the basis of the facts so admitted. As the facts set out in both the Brief Facts and the Summary of Facts are the same (or at least very substantially similar), the Defendant’s previous admission to the Brief Facts would jeopardize his opportunity to defend the more serious charges at the District Court. It is now not open for the Defendant to challenge the facts he already admitted and those facts amount to the whole of the prosecution case at the District Court trial.

(5)  In the Court of Final Appeal decision of Yeung Chun Pong v Secretary for Justice (2009)  12 HKCFAR 867, in dealing with an application for permanent stay of proceedings in Hong Kong on the basis of the rule of double jeopardy, the CFA held (at p.875A):

“There is a discretionary power to stay a prosecution as an abuse of process where (i)  a person faces a second trial arising from the same or substantially the same set of facts as gave rise to an earlier trial (whether in the same jurisdiction or in a competent court in another jurisdiction)  and (ii)  the prosecutor cannot advance any special circumstances to justify the holding of a further trial.”

(6)  Given the circumstances, we respectfully write to request the Department to provide the reasons for laying these charges against client in 2022 so that we would be in a position to advise our client accordingly.

(7)  Further or alternatively, the Defendant will not be able to have a fair trial given the substantial delay in prosecuting the District Court charges coupled with his deteriorating health, both physical and mental, since the incident in December 2018. The prosecution has correctly stated in both the Brief Facts and the Summary of Facts that the Defendant attempted to use his body to halt the bus from rolling downhill and was overrun and dragged beneath the bus for about 20 metres. The Defendant sustained grievous bodily injuries and was hospitalized or 6 months. As a result of the injuries, he has been rendered wholly incapable to work and has mobility issue and has since been receiving disability allowance from the government. The Defendant has also been suffering from serious psychiatric illnesses and has been on psychiatric medications for treating depression, anxiety and insomnia, as well as other medication (particular painkillers)  for his injuries (see a list of the medicines. He is taking at Annex 2). He was diagnosed to have suffered from post-traumatic stress disorder and moderate depression. The sudden and substantial delay in prosecution given the peculiar circumstances of the Defendant causes insurmountable stress and pressure to him adversely and severely affecting his mental health and well-being. He has been attending the follow up sessions at the Departments of Psychiatry, Psychology and Ophthalmology. We have enclosed his medical report dated 24 November 2022 as Annex 3. It is submitted that the Defendant will never have a fair trial on this basis.

We thank you for your kind attention and would be grateful for a reply at your earliest convenience…”

17.2023 年 6 月 28 日，律政司回覆指：

“In respect of para. 6 of your said letter where you requested us “to provide the reasons for laying these charges against [the Defendant] in 2022 so as to appropriately advise the Defendant, the exercise of the prosecutorial decision to institute prosecution against the Defendant for the present charges in the District Court is taken in accordance with the Prosecution Code 2013. As part of our prosecutorial duty, the Defence has been served with materials of the case, as well as a Summary of Facts dated 23 December 2022 that is intended to assist the Court and the parties in the Plea Day and Mention hearings of the case. We fail to see any further reasons required of us, as a matter of principle, and in the present circumstances, for prosecuting the Defendant in the present case.

The rest of your letter contains suggestion(s)  to the effect that the present prosecution against the Defendant inter alia “arises from the same set of facts relying on the same or at least very substantially the same evidence” as was involved in an earlier summons issued against the Defendant which pleaded guilty to in ESS 20488/2019, and that the Defendant “will not be able to have a fair trial”. Nothing in this letter, including any previous service of materials and / or Summary of Facts for the purposes as stated hereinabove, should be taken to affect, limit, or otherwise represent the position of the prosecution as regards such application(s)  that the Defendant may make in respect of the present case. In the event such application(s)  are, in fact, made, the prosecution would address the Court on the basis of all relevant legal principles, and evidence in the present matter…”

18.2023 年 10 月 5 日，被告人於區域法院答辯，並表示不認罪及會申請永久終止聆訊。本案的整個事發時序，見附件 1。

論點

19.首先，本案的爭議涉及普通法下的 rule against double jeopardy。這個原則與 autrefois convict /autrefois acquit 類同，但測試卻完全不同。為免混淆，於本判決中，本席會將 autrefois convict / autrefois acquit 的原則稱為「一罪兩審」，而 rule against double jeopardy 稱為 「免受雙重損害」。

20.雖然辯方大律師於其陳詞指本案控罪違反「一罪兩審」（autrefois convict）的原則，從她陳詞的內容及其援引的案例可見她實質上是依賴「免受雙重損害」（rule against double jeopardy）的原則。於聆訊時，辯方大律師亦確認上述的看法。因此，本案申請的基礎包括：

(1)  本案的檢控違反「免受雙重損害」的原則；

(2)  本案的檢控違反《香港人權法案》第 11(6)  款；和

(3)  本案的檢控構成濫用法律程序。

21.控方則否認本案違反「免受雙重損害」原則、《香港人權法案》或濫用程序。控方對「免受雙重損害」的測試、「相同或大致相同事實」的定議均有爭議。控方亦稱，第二次檢控並非因「相同或大致相同事實」導致；就算本案是源自相同或大致相同的事實，控方也有特別或特殊的原因繼續作出起訴。控方亦對辯方所述的法律原則及所有案例有爭議。另外，控方就《香港人權法案》是否適用、及當《香港人權法案》適用時法庭的權力亦有爭議。

22.換言之，本案的論點是：

(1)  「免受雙重損害」適用的法律原則及測試；

(2)  「相同或大致相同事實」的定義；

(3)  本案的第二次檢控是否由第一次檢控的「相同或大致相同的事實」而導致；

(4)  如兩次檢控均由「相同或大致相同的事實」而導致，控方能否證實有特別或特殊情況繼續作出起訴；

(5)  本案的控罪是否違反「免受雙重損害」的原則；

(6)  如本案的控罪違反「免受雙重損害」的原則，《香港人權法案》第 11(6)  款是否適用；

(7)  如《人權法案》第 11(6)  款適用， 法庭有否酌情權拒絕永久擱置本案的法律程序；

(8)  控方有否濫用法律程序；和

(9)  法庭應否行使酌情權永久擱置本項的法律程序。

23.辯方可以不同的基礎申請永久擱置法律程序；而每一個基礎的門檻均有別。本席現續一處理上述論點。

「免受雙重損害」原則（rule against double jeopardy)

法律原則

24.雙方不爭議，除非有特別或特殊的情況（special or exceptional no circumstances），法庭有酌情權永久擱置違反「免受雙重損害」原則的法律程序。可是雙方對甚麽情況構成「雙重損害」及有關的測試均有爭論。

25.「免受雙重損害」原則（rule against double jeopardy)  源自英國樞密院於 Connelly v DPP [1964] 2 All ER 401 的判決。 該原則與「一罪兩判」（plea in bar 或 autrefois convict / autrefois acquit）的原則有別，測試亦不同。

26.上訴法庭於 Yeung Chun Pong v Secretary for Justice [2008] 3 HKLRD 1 考慮了 Connelly 案，並詳細解釋「一罪兩判」和「免受雙重損害」的分別：

(1)  該案中的申請人於澳門被控俗稱「洗黑錢」的罪名。案情指申請人於 1999 年 8 月至 2000 年 6 月期間，利用一個以某謝女士名義持有的銀行戶口（95 戶口），處理 1.87 億港元，而該筆款項是於 1999 年至 2000 年馬季期間在香港非法收受賽馬賭注的收益。澳門法院裁定 3 名被告人罪名不成立。後來，3 名被告人在香港被控 2 項串謀「洗黑錢」罪。該案案情指各被告人於 1998 年 6 月至 1999 年 9 月期間，串同其他人士，利用一個以第二被告人名義持有的銀行戶口（74 戶口）處理 216,153,319 港元，而該筆款項是於 1998 年至 1999 年馬季期間在香港非法收受賽馬賭注的收益。三名被告人根據「禁止一罪兩審」、「免受雙重損害」及「濫用程序」原則，向法庭申請永久擱置上述刑事法律程序。該申請被原審法官駁回；3 名被告人遂提出上訴。

「一罪兩審」（plea in bar / autrefois convict）

(2)  雖然後來被告人放棄「一罪兩審」的論點，但因業界對「一罪兩審」及「免受雙重損害」的測試及原則有混淆，上訴法庭認為仍須就該些原則作出解釋。上訴法庭指：

“8. It can be seen from these two charges that the prosecution was alive to the fact that it could not charge the applicants with the same offence of which they had been acquitted in Macau. What they sought to do by the first charge in Hong Kong was to prosecute them for a conspiracy said to be evidenced by a time period and a bank account distinctly different from the time period and bank account which the Macau money laundering charge had specified. However they could and did charge D3 with the Macau money laundering offence because she was never tried in Macau.

In the District Court

9. In the District Court, counsel for the applicants presented what he referred to as a “special plea” namely, the plea of autrefois acquit. It is clear that at that stage and at first instance in the judicial review, the case was primarily presented as a plea in bar.

10. The plea in bar was put forward on the basis that the commutation or money laundering charge in Macau and the conspiracy charge in Hong Kong were the same allegations in substance and founded upon the same set of facts. In rejecting the plea, Judge Wright relied on the fact that the offence of conspiracy in Hong Kong is not reflected by the law that prevails in Macau because mere agreement without execution of the acts foreseen does not there amount to an offence; and he considered that that in itself was enough to dispose of the plea in bar. In addition he noted that … (the ‘74’ account)  specified in the first charge did not form part of the accusation or judgment in Macau and that the time spans covered by the allegations in the respective jurisdictions were quite different.

11. In relation to the application to stay the proceedings, the judge noted the emphasis in HKSAR v Lee Ming Tee that the circumstances in which such an application was likely to succeed would have to be exceptional; and that the mere fact that the applicants had not been charged in Macau with money laundering allegedly evidenced by the ‘74’ account did not demonstrate oppressive conduct on the part of the Hong Kong prosecuting authorities.

The notice of application

12. The notice of application for leave to apply for judicial review challenges the judge’s decision by which “the special plea of autrefois acquit failed”, and the rejection of the application for a permanent stay of proceedings. The assertion in the notice is that: “The HKSAR now brings proceedings in Hong Kong relating to a variation of the same factual matrix. The HKSAR case is but an earlier facet of the very proceedings determined in Macau.” It is further asserted that the plea should have succeeded because the Hong Kong charge related to “part of a series of offences of the same or a similar character as the offences charged in the previous indictment,” a reference to a passage in Connelly v DPP, to which we must return. The issue, it is said, is “whether factually the new indictment was substantially similar to the former one.”

13. In relation to the stay application, the notice asserts that the discretion applies “where the second indictment arises out of the same or substantially the same set of facts as the first” and that the judge failed to appreciate that that discretion should be exercised in favour of an accused unless the prosecution established that there were special circumstances for not doing so.

The judgment under appeal

14. Reyes J held, correctly in our view, that none of the tests of substantial similarity that had been advanced was apposite to a plea of autrefois acquit. Rather, it merely invited attention to an identification of the elements of the offence and not to what witnesses could or would say. He rejected the suggestion that this was a case of autrefois acquit.

15. He dealt but briefly with the question of the District Court judge’s discretion to stay the proceedings and his refusal so to do. He said that he could see no good reason for saying that the exercise of the judge’s discretion was unreasonable. Further, “autrefois acquit having been rejected by the judge, there was no additional basis for considering a grant a stay on some wider formulation of that plea”.

The plea in bar

16. It is recognized by Mr Lawson QC, for the applicants, …, that the plea in bar was never tenable and, accordingly, he does not pursue the argument.

17. Despite that concession, the history of this case illustrates a need to emphasise the limited boundary of the plea of autrefois acquit and to put to rest the assumption, certainly on the part of those who advanced the plea, that has bedevilled these proceedings until the hearing before us, that the plea was available so long as the two proceedings were in respect of the same or substantially the same set of facts. It was also the insistence that this was a case of autrefois acquit that opened the door to a collateral challenge, for a rejected plea in bar might properly be the subject of such a challenge whereas the exercise of a discretion in the course of a criminal trial should not be. Application of the arguability threshold for leave to apply for judicial review recently stipulated by the Court of Final Appeal in Peter Po Fun Chan v Winnie C.W. Cheung & Another will no doubt hereafter serve as a more realistic filter for the type of challenge deployed in this case against the trial court’s autrefois determination.

18. The parameters of the plea are not only narrow but clear and ascertainable by the application of strict logic. Once it is understood that the plea is an aspect of res judicata, it becomes evident that in order for it to be invoked, it is incumbent upon an accused to identify with precision the previous decision relied upon and, in the context of criminal proceedings, that can only be done by reference to a verdict and the elements of the offence necessarily encompassed by that verdict.

19. The test of autrefois acquit is one directed at the elements of the two offences under comparison. By this is meant a comparison of the constituent elements in law of the offences charged, and the facts asserted in the charges themselves. “For the doctrine to apply it must be the same offence both in law and in fact”. This is a “purely legal test of whether the person’s acquittal in the first proceedings necessarily in law involves an acquittal in the second” and covers an “implied alternative acquittal … where the jury could lawfully have convicted the defendant on an alternative charge to the one being tried but have returned no verdict on it.” It is not a test that compares the testimony given in the previous trial with the testimony that is anticipated in the second trial. It is this latter notion encouraged by the phraseology of certain judgments – such as the ‘same matter’ in Wemyss v Hopkins– that has caused confusion and a blurring of lines, a confusion that has been exposed in R v Beedie, and analysed in depth in Pearce v The Queen. Since it is not a test that examines testimony to be given, its validity or invalidity does not change with emerging testimony. It is either good or bad ab initio.

20. In R v Barron, there were two indictments: one charging sodomy, the second charging an act of gross indecency with another male person. The appellant’s conviction upon the first indictment was quashed and he was to be tried upon the second. A plea was raised of autrefois acquit. The facts to be proved and the testimony to be adduced in support of the second indictment were the same as had been adduced at the trial of the first. Counsel for the appellant ‘admitted that at the trial upon the first indictment the appellant could not have been convicted of the offence charged in the second indictment and that therefore he was not in peril of being convicted of the lesser offence. The true test [he contended] whether a plea of autrefois acquit is good is not, however, whether the person charged was in peril of being convicted on a previous trial of the offence subsequently charged. If the second charge is based upon the same facts and evidence as were proved and adduced in support of the first charge, then the plea of autrefois acquit is good.’[16] The Court of Criminal Appeal did not agree:

“The test is not, in our opinion, whether the facts relied upon are the same in two trials. The question is whether the appellant has been acquitted of an offence which is the same offence as ‘gross indecency,’ i.e. whether the acquittal on the charge of sodomy necessarily involves an acquittal on the charge of gross indecency. It is quite clear that the jury could not have convicted the appellant of gross indecency at the first trial. And it equally clear that the acquittal on the graver charge did not necessarily involve an acquittal of the minor offence. … There has … been no verdict that the appellant was not guilty of gross indecency ….”

This fits perfectly with the principle that underlies the plea, namely, that which requires the identification of a judicial determination, the correctness of which the prosecutor is estopped from controverting in later proceedings.

21. In Pearce, counsel for the appellant argued that “a person may not be convicted of two different offences in respect of the same or substantially the same set of facts”. In response, the High Court responded that:

“It is clear that the plea in bar goes to offences the elements of which are the same as, or are included in, the elements of the offence for which an accused has been tried to conviction or acquittal.”

22. McHugh, Hayne and Callinan JJ then addressed the difficulties which phrases such as “substantially the same” offence, and the “same matter” had created in the context of the plea in bar. It is a blurring of lines that was central in the case now before us, because it is the concept “substantially similar” that lies at the heart of the applicants’ arguments on review:

“There are, however, decisions that a person may not be prosecuted for one offence when that person has previously been prosecuted for “substantially the same” offence, or for an offence the “gist” or “gravamen” of which is the same as the subject of the earlier prosecution or, as was said in Wemyss v Hopkins [(1875)  LR 10 QB 378], for the “same matter”. It may be suggested that these cases indicate that a plea in bar is also available if a person is charged with different offences arising out of substantially the same set of facts.

Much of the difficulty in determining whether a plea in bar is available when a person is charged with different offences arising out of substantially the same facts can be seen to stem from two sources: first, the uncertainties inherent in the proposition that it is enough that the offences are “substantially” the same; and secondly, the attempt to identify the “sameness” of two offences by reference to the evidence that would be adduced at trial. But these difficulties may be more apparent than real.

… [where the test has been identified as being whether the evidence necessary to support the second prosecution would have been sufficient to procure a legal conviction upon the first] … the inquiry suggested … is an inquiry about what evidence would be sufficient to procure a legal conviction. That invites attention to what must be proved to establish commission of each of the offences. That is, it invites attention to identifying the elements of the offences, not to identifying which witnesses might be called or what they could say. It is only if attention is directed to what evidence might be given, as opposed to what evidence was necessary, that the inquiry begins to slide away from its proper focus upon identity of offence to focus upon whether the charges arise out of the same transaction or course of events.

Further, when it is said that it is enough if the offences are “substantially” the same, that should not be understood as inviting departure from an analysis of, and comparison between, the elements of the two offences under consideration.

…

On closer analysis, … it may be that Wemyss and other cases that are said to support the proposition that a plea in bar is available when a person is charged with different offences arising out of the same set of facts do not do so. Moreover, there are sound reasons to confine the availability of a plea in bar to cases in which the elements of the offences charged are identical or in which all of the elements of one offence are only included in the other.

Shifting attention to whether the offences arise out of the same conduct, or out of a single event or connected series of events, would be to substitute for a rule prohibiting prosecution twice for a single offence for a rule that would require prosecuting authorities to bring at one time all the charges that it is sought to lay as a result of a single episode of offending. …

…principal focus of the rule underlying the pleas in bar which is a rule against repeated prosecution for a single offence…that several different offences may be committed in the course of a single series of events, …and that charges will usually be framed in a way that reflects all of the criminal conduct of the accused.…

23. The same narrow ambit of the bar was highlighted by Rose LJ in R v Beedie;

“… Mr Smith was inclined to concede that Clarke J.’s analysis of the speeches in Connelly v Director of Public Prosecutions was correct, namely that the majority of the House of Lords identified a narrow principle of autrefois acquit, applicable only where the same offence is alleged in the second indictment. In our judgment this concession was rightly made. Lord Devlin said, at pp. 1339- 1340: ‘For the doctrine to apply it must be the same offence both in fact and in law,’ and he went on, having rejected the idea that an offence may be substantially, rather than precisely, the same as another in its legal characteristics, to reject the suggestion that autrefois applies in favour of an accused who has been prosecuted on substantially the same facts. Lord Pearce, at p. 1368, agreed with the opinion of Lord Devlin. Lord Reid said, at p. 1295:

Many generations of judges have seen nothing unfair in holding that the plea of autrefois acquit must be given a limited scope … I cannot disregard the fact that with certain exceptions it has been held proper in a very large number of cases to try a man a second time on the same criminal conduct where the offence charged is different from that charged of the first trial.

It follows that we are unable to accept the view of the editors of Archbold's Criminal Evidence, Pleading and Practice expressed in earlier editions, and in paragraph 4-117 of the 1997 edition, that Lord Morris of Borth-y-Gest’s speech, and in particular his third and fourth principles expressed at p. 1305 (that the principle of autrefois applies to offences which are the same, or substantially the same, and an appropriate test is whether the evidence to support the second indictment of the facts constituting the second offence would have been sufficient to procure a conviction on the first indictment), represents the ratio of the House’s decision. Clarke J.’s analysis was correct. The majority of their Lordships in Connelly v Director of Public Prosecutions defined autrefois in the narrow way which we have described, that is when the second indictment charges the same offence as the first and said that judicial discretion should be exercised in other appropriate cases. Lord Morris and Lord Hodson took the view that no such discretion existed.”

See also United States v Dixon that restored the test in Blockburger v United States that:

“… where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.”

24.  This rule, limiting application of the plea to elements of the respective offences, renders it a rule that is inherently consistent in its operation and one that in practice should not be difficult to resolve.  To go beyond these precise and readily ascertainable boundaries is to introduce uncertainty, and to ignore the underlying premise for the rule.  It is to introduce those multifarious considerations that are appropriate to another vehicle altogether, namely, the exercise of a judicial discretion in the context of an application to stay proceedings on the basis of oppression or abuse of process. That is the exercise to which this appeal has narrowed and to which we now turn.” （強調後加）

「免受雙重損害」原則

27.上訴法庭於 Yeung Chun Pong 案中指，該案真正的論點是香港的檢控是否違反「免受雙重損害」的原則，繼而構成控方作出「壓迫」（oppression）或「濫用法律程序」（abuse of process）[見判詞第 14 頁第 24 段]。

28.上訴法庭指：

Jurisdiction to stay

25.  “In general if a prosecution is brought, the court’s duty is to try the case. … However, the court also unquestionably has jurisdiction to stay criminal proceedings brought by the Secretary in the exceptional cases where such a course is justified.  That jurisdiction rests on the court’s inherent power to prevent abuse of its own process: Connelly v DPP [1964] AC at pp 1354,1361.”

HKSAR v Lee Ming Tee & another, in which Ribeiro PJ cited Lord Lane CJ in A-G’s Reference (No 1 of 1990)  in relation to grounds other than delay:

The abuse alleged may arise in many different forms. It may involve complaints about the methods used to investigate the offence. … It may be based as Connelly v DPP … itself was, on the allegation that the defendant has been prosecuted more than once for what is in effect the same offence. It may be a misuse of the process of the court to escape statutory time limits…(Emphasis added.)

It is the ground there emphasized that is pursued in this review and upon this appeal.

26.  Their Lordships in Connelly decided that the courts had the power to stay proceedings where, although the plea in bar could not be made out because the second trial was not for the same offence, the charges in the later case were founded on the same or substantially the same facts as the charges in a previous indictment on which the accused had been tried to conclusion.  They thereby endorsed the spirit of the rule against double jeopardy where it applies outside the strict limits of the plea in bar saying that there was no reason why the two pleas ‘should exhaust the inherent power of the court”.

The same or substantially the same facts

27.  The issue in this case is how far that rule goes and whether the prosecution of the applicants in this case falls foul of it.

28.  The rule against double jeopardy upon which the applicants rely extends beyond, although of course it includes, the strict limitations of the plea in bar to the general notion that someone should not be re-prosecuted ‘on the same or substantially the same facts’ upon which earlier charges, which have been determined, were based.  This, as we have seen, is the test to be avoided in examining the plea in bar, but which is apt in assessing whether prosecutorial conduct has nonetheless infringed the principled injunction against placing in jeopardy someone who has already been prosecuted and convicted or acquitted for the same matter.  The purpose of the rule is to prevent oppression of an accused, oppression constituted by occasioning the accused ‘… embarrassment, expense and ordeal and compelling him to live in a constant state of anxiety and insecurity’ and it is undoubtedly within the court’s power to prevent such oppression.  The rule has a further rationale, which is to guard against an abuse of prosecutorial power whereby the chance of a conviction of someone who may be innocent may be enhanced by repeated prosecutions.…

30.  According to the applicants the relevant test to be applied is “whether the defendant [is] being sought to be prosecuted ‘on the same or substantially the same facts’ as gave rise to a previous acquittal”; a test that is said to be non-contentious, leaving in contention the application or the meaning of that test.

31.  The test is culled from a passage in R v Z where Hutton said that:

“The principle of double jeopardy operates to cause a criminal court in the exercise of its discretion, and subject to the qualification as to special circumstances stated by Lord Devlin in Connelly's case, at p 1360, to stop a prosecution where the defendant is being prosecuted on the same facts or substantially the same facts as gave rise to an earlier prosecution which resulted in his acquittal (or conviction), as occurred in Reg v Riebold [1967] 1 WLR 674 and the cases cited by Lord Pearce in Connelly’s case, at pp 1362–1364, and see also Reg v Beedie [1998] QB 356.”

32.  The argument in the present case seems to be that because the root of the alleged laundering in both sets of prosecutions was the same, namely, unlawful gambling in Macau on Hong Kong races, it follows that it is proposed in Hong Kong to prosecute the applicants on the same or substantially the same facts.  We fail, with respect, to see how that can be so.

33.  In the context of the notion of double jeopardy the meaning of the phrase “on the same or substantially the same facts” is clear enough. What is envisaged is prevention of a second or further prosecution for the same incident, the same event, the same transaction, the re-litigation of a decided matter, the need for protection of a defendant ‘against the repetition of charges after an acquittal or even after a conviction which was not followed by a punishment severe enough to satisfy the prosecutor’, a warning that finds an echo in Mr Lawson’s suggestion that had these applicants been convicted in Macau on the money laundering charge, it is unlikely that the Hong Kong prosecution would have been launched.  This concentration upon the same incident, transaction or event is clear from an appreciation of the principle of double jeopardy and from authority.

34.  In R v Phipps, Clarke LJ stated that:

The authorities do not consider in detail what is meant by the same or substantially the same facts but, in our view, as Lord Pearce makes clear [in Connelly] they essentially mean that the Crown should not be permitted save in special or exceptional circumstances, to bring a second set of proceedings arising out of the same incident as the first set of proceedings after the first set of proceedings has been concluded. The principle (which is in essence that identified in the civil law by Wigram CJ in Henderson v Henderson)  is that the Crown should decide at the outset, or at the latest before the conclusion of the first set of proceedings, what charges it wishes to bring arising out of the same incident. Any other approach is unfairly oppressive to a defendant. It is for that reason that the burden is on the crown to identify special or exceptional circumstances to justify such a course (Emphasis added.)

35.  The reference there to the speech of Lord Pearce in Connelly is to that part which addresses the court’s inherent jurisdiction extending beyond the strict limits of pleas in bar to prevent in criminal proceedings re-litigation of decided matter. The existence of that power is illustrated by a number of cases cited by his Lordship including Wemyss v Hopkins where successive prosecutions were founded ‘on one and the same incident’ namely, the conduct of a driver of a carriage in striking at a horse thereby injuring its rider, from which single incident were constructed two separate offences. Lord Pearce said that the cases discussed:

“... showed that a narrow view of the doctrines of autrefois acquit and convict … does not comprehend the whole of the power on which the court acts in considering whether a second trial can properly follow an acquittal or conviction. A man ought not to be tried for a second offence which is manifestly inconsistent on the facts with either a previous conviction or a previous acquittl. And it is clear that the formal pleas which a defendant can claim as of right will not cover all such cases.” (Emphasis in original.)

36.  In R v Z, Lord Hutton analyzed the decision of the House of Lords in DPP v Humphrys and stated that in his opinion:

“ … the speeches in the House recognised that as a general rule the circumstances in which a prosecution should be stopped by the court are where on the facts the first offence of which the defendant had been convicted or acquitted was founded on the same incident as that on which the alleged second offence is founded.” (the first is original; the second is added.)

37.  R v Beedie provides a further example of a case in which the plea of autrefois acquit did not run but a stay was granted because the second prosecution was based on substantially the same facts.  The defendant was the landlord of a property in which a young woman died of carbon monoxide poisoning caused by the use of a defective gas fire.  The defendant pleaded guilty to an offence under the Health and Safety at Work of Act 1974 of failing in his undertaking as a landlord to ensure our the safety of the deceased by maintaining the fire and flue in good repair and proper working order. Subsequently he was charged with manslaughter and upon rejection of a plea of autrefois convict, he pleaded guilty.  The conviction was quashed on appeal because the court was of the opinion that:

A stay should have been ordered because the manslaughter allegation was based on substantially the same facts as the earlier summary prosecutions, and gave rise to a prosecution for an offence of greater gravity, no new facts having occurred …”

38.  In R v Reibold the prosecution, having elected upon the first trial to proceed only upon one of two counts of conspiracy, sought leave to proceed with the second trial upon some of the remaining counts that had been left on the file in earlier proceedings. Barry J. refused leave on the grounds that:

“ … what the prosecution seek to do is to secure a retrial of this whole case, and I am equally satisfied that, if such retrial were to take place, it would become a complete reproduction of the trial which took place last year at some considerable length … . The issues would be entirely the same … I am told, and I accept, that the subject-matter of the remaining charges … did in fact constitute the whole of the overt acts of the conspiracy on which the prosecution relied, and there were no additional factors or evidence on which the prosecution relied in order to secure a conviction on the conspiracy charge. Therefore, it does seem to me to be entirely clear that, not only have the accused been in substance tried on these other charges, but also any retrial of them would amount to a complete reproduction of the previous trial.”（強調後加）

29.換言之，上訴法庭指：

(1)  如控方提出檢控，法庭有責任進行審訊；

(2)  法庭有酌情權下令永久擱置刑事法律程序；

(3)  考慮永久擱置法律程序的申請時，法庭須極度謹慎；

(4)  法庭在極特殊的情況下才可永久擱置法律程序；

(5)  同一事件可能顯示被告人干犯一連串的控罪；控方有責任於同一法律程序中檢控所有有關控罪；

(6)  當有人以「一罪兩審」提出永久擱置法律程序時，法庭只須考慮首次檢控的控罪及第二次檢控的控罪，決定兩項控罪的元素是否相同。如兩次檢控的控罪元素均完全相同，或首次檢控的控罪元素已包含第二次檢控的所有控罪元素，便構成「一罪兩審」；法庭應下令永久擱置法律程序 [見判詞第 10 頁，第 18-19 段]；

(7)  當同一件事件披露超過一項控罪時，控方有責任同一時間作出起訴，但這原則與「一罪兩審」並不相同 [見判詞第 13 頁，第 22 段]。

(8)  控方因同一事件分別作出兩次檢控，而兩次的控罪元素並非完全一樣時，辯方不能以「一罪兩審」的原則申請永久擱置第二次的法律程序；

(9)  可是，當控方分別作出兩次檢控時，「一罪兩審」永久擱置法律程序並非法庭的唯一權力 [見判詞第 18 頁第 35 段]；

(10)  如第二次的檢控是基於同一事件，被告人已於第一次檢控時因相同或大致相同的事實被裁定有罪或無罪，一般而言，除非有特別原因，法庭應停止第二次的檢控 [見判詞第 18 至 19 頁第 36 至 38 段]。

30.上述案例的申請人不服上訴法院的判決，向終審法院提出上訴 [(2009)  12 HKCFAR 867]。終審法院駁回上訴，並指：

“Guarding against double jeopardy, vexation and inconsistency

17. In regard to the power to stay a prosecution that amounts to an abuse of process, we were addressed on our decisions in HKSAR v. Lee Ming-tee (No.1) (2001)  4 HKCFAR 133 and HKSAR v. Lee Ming-tee (No.2) (2003)  6 HKCFAR 336. On the principles by which protection against double jeopardy is accorded under that power to stay a prosecution, we have been addressed on a number of overseas decisions. These include those of the House of Lords in Connelly v. DPP [1964] AC 1254 and R v. Z [2000] 2 AC 483 and those of the High Court of Australia in Rogers v. R (1994)  181 CLR 251, Pearce v. R (1998)  194 CLR 610, R v. Carroll (2002)  213 CLR 635 and Island Maritime Ltd v. Filipowski (2006)  226 CLR 328.

18. Through Lord Devlin’s reference to it in Connelly’s case at p.1356, Mr Tim Owen QC for these three appellants referred to Sir James Wigram V-C’s statement of principle in Henderson v. Henderson (1843)  3 Hare 100 at pp 114-115 about the obligation on a party to bring forward the whole of his case at the same time. At p.1358 Lord Devlin spoke of Sir James Wigram V-C’s principle for stopping vexatious process as applicable to the criminal law as well as to the civil law. The principle is one which our courts have regularly applied in civil cases, taking it from the decision of the Privy Council on appeal from Hong Kong in Yat Tung Investment Co. Ltd v. Dao Hang Bank Ltd [1975] AC 581. There is at least as much reason for applying it in criminal cases. Putting it broadly in R v. Elrington (1861)  1 B & S 688 at p.696, Chief Justice Cockburn spoke of “the well-established principle of our criminal law that a series of charges shall not be preferred”. By “series of charges” he must have meant, as Lord Morris of Borth-y-Gest explained in Connelly’s case at p.1315, “charges preferred at different dates”. Where a number of charges are to be brought and they can be brought together, they ought normally to be brought and pursued at the same time unless there is good reason and justification for doing so at different times…

20. One of Mr Owen’s lines of argument appears to be that there is abuse in the failure, presumably in Macau, to prosecute all charges arising out of the illegal bookmaking and money laundering course of conduct. But quite apart from anything else, the real and practical complaint can hardly be of not having been prosecuted for something earlier. Such a complaint can only be of being prosecuted for it now.

21. That brings me to Mr Owen’s next line of argument, which begins with the following proposition for which he rightly contends and Mr Kevin Zervos SC for the respondent rightly accepts. There is a discretionary power to stay a prosecution as an abuse of process where (i)  a person faces a second trial arising from the same or substantially the same set of facts as gave rise to an earlier trial (whether in the same jurisdiction or in a competent court in another jurisdiction)  and (ii)  the prosecutor cannot advance any special or exceptional circumstances to justify the holding of a further trial…

22. Mr Owen submits that the two charges in question do – while Mr Zervos submits that they do not – arise from the same or substantially the same set of facts. When considering these rival submissions, it is necessary to bear in mind that criminal conduct over a period may, depending on the particular facts, constitute a single offence or a series of offences that are separate albeit of a like nature.”（強調後加）

31.包致金常任法官於判詞第 23 至 24 段就澳門和香港控罪的案情是否出自相同或基本相同的事實進行分析及比較。他指出，兩項控罪案情所指的時段、銀行戶口及其持有人，甚至涉案金額都完全不同。澳門控罪的案發日期為 1999 年至 2000 年的賽馬季，而香港控罪的案發日期為 1998 年至 1999 年的馬季。雖然案發時段稍有重疊，但重疊日期只有數天。兩項控罪涉及不同的銀行戶口及不同的金額。因此，他認為三名被告人在香港面對的控罪與他們在澳門面對的控罪並非出自同一或實質上相同案情。

32.顯然地，終審法庭認同上訴法庭的判決。

「免受雙重損害」原則的測試

33.辯方大律師指，法庭有酌情權因控方濫用法律程序而永久擱置本案。「免受傷重損害」（rule against double jeopardy），在沒有特別原因下，可構成濫用程序。首先，辯方大律師指本案兩次檢控的控罪均源自相同或大致相同的事實，援引 Yeung Chun Pong 案（同上）的判決，要求法庭永久擱置本案的法律程序。

34.控方則指：

「3. … 簡而言之：-

(1)  被告人引用普通法下源自 Connelly v Director of Public Prosecutions 等案的「免受雙重損害」原則（rule against double jeopardy），並依賴英國上訴法庭在兩個案件的事實分析，力陳危駕控罪與該傳票的事實「完全相同」；而控方未能提出特別或特殊情況，以支持危駕審訊。故被告人邀請法庭，以濫用程序（abuse of process）為由，行使酌情權，擱置危駕的檢控，及

(2)  被告人亦聲稱，他無法就危駕控罪獲得公平審訊。」

35.控方是清楚知悉，辯方是依賴「免受雙重損害」原則，而非「一罪兩審」的原則作出本申請。

36.控方不爭議法庭有酌情權，可永久擱置違反上述原則並沒有特別情況的檢控（見陳詞第 4 段）。控方指：

「（1） 英國樞密院及香港終審法院案例確立，法庭在處理此等擱置審訊申請時，必須極度審慎（with extreme caution），並僅在極特殊的情況下（most exceptional circumstances）方可行使酌情權。每宗申請，都必須按照個別案件的情況考慮，不能一概而論（強調後加）。」

37.本席完全同意上述原則。

38.可是，控方於陳詞第 4 段續陳：

「(2)  在此前提下，經謹慎審視所有相關事實及情況可見，該傳票及危駕控罪，並不大致相同，遑論被告人所指「完全相同」（強調後加）」

39.控方明顯地將「一罪兩審」及「免受雙重損害」的測試完全混淆。無論是根據香港或英國的案例（Yeung Chun Pong 及 Connelly，只有「一罪兩審」原則的測試才要求兩項控罪的元素完全相同。

40.事實上，就「免受雙重損害」的測試由香港最高級的法庭（終審法庭）確立，根本沒有爭論的空間。況且，控方於陳詞第 16 段亦承認，正確的測試是：

(1)  被告人面對第二次審訊，而導致該審訊的事實，與導致首次審訊的事實相同或大致相同（a person faced a second trial arising from the same or substantially the same set of facts as gave rise to an earlier trial）；及

(2)  檢控人員未能提出特別或特殊情況以支持進行第二次審訊（the prosecutor could not advance any special or exceptional circumstances to justify the holding of a further trial）。

41.因此，控方於陳詞第 4 段的立場並不正確。

42.控方續指：

「5. 承上述，控方同意，法庭在普通法原則下，有權下令終止檢控程序。值得商榷的是，此權力的性質為何，及法庭應當以什麼態度及準則考慮行使此權力。⋯

9. 香港上訴法庭在 Yeung Chun Pong v Secretary for Justice [2008] 3 HKLRD 1…明言，法庭在考慮基於雙重傷害構成濫用程序的擱置法律程序申請時，必須極度審慎（must be exercised with extreme caution），並只在最特殊（ most exceptional）的情況下，才受理申請。上訴法庭表明的兩大關注是，（1） 若容許擱置法律程序的情況經常出現，將有損公眾對法庭的信任，及(2)  基於檢控機關的獨立性，法官不應（亦不應被視為）參與檢控決定；即使法官個人對個別的檢控決定有異議，亦無權因此擱置法律程序。法庭並一再表明，成功擱置法律程序的個案，應非常有限（very limited） ；參見判辭第 71-78 段。

10. 上訴法院以上的原則性裁定，乃經考慮眾多普通法權威案例後作出，包括香港終審法院於 HKSAR v Lee Ming Tee & Another 案及英國樞密院於 DPP v Humphrys 案 [1977] AC 1…的判決。及至 Yeung Chun Pong 案再經上訴，終審法院亦同意上訴法庭拒絕擱置法律程序的決定，故上述的原則，於本案具有十足的約束力。

11.  值得留意的是，是次擱置程序申請既建基於 Connelly 案的裁定，其實英國樞密院在往後的 Humphrys 案，就 Connelly 案的裁決，曾作出了相當程度的警惕及規範。法庭其中一個關注點，乃終止法律程序的酌情權，不應凌駕檢控機關將合法提出的控罪呈交法庭裁斷的同等權利…參見判辭第 23B-25F 段…

12.  Humphrys案的另一大關注點，乃 Connelly 案判辭的部份表述，有過分籠統及廣泛（very general and far reaching character）之嫌，而過分依賴個別法庭就個別案件事實作出的裁定，亦會導致司法不一致的危機。因此法官必須警惕，不可參與或被視作參與檢控決定。在此前提下，法庭澄清，Connelly 案引申的固有司法酌情權，必須在極特殊情況下方可應用…參見判辭第 25G-26E 段…

13.  於 R v Horseferry Road Magistrates’ Court, Ex parte Bennett 案 [1994] 1 AC 42…，英國樞密院延續 Humphrys 案的原則並進一步肯定，法庭就濫用程序擱置案件的酌情權，乃非常侷限（very strictly confined）及鮮有被行使的（a power to be most sparingly exercised）；參見判辭第 63F-H 段。

14.  綜合上述，控方懇請法庭，按上述各最高級別法院奠定，且具有約束力的大原則，以極為嚴格的方式，且在不削弱（或看似削弱）控方檢控自主權的前提下，審視本案有否違反濫用程序原則的相關規定。即使被告人 / 法庭認為相關的檢控或有商榷之處，不代表便存在極特殊的情況，足以讓法庭輕易擱置危駕控罪。法庭亦須警惕，必須在本案獨特的案情作出裁斷，避免過分依賴某法庭對個別案件的事實裁斷。」

43.首先，於 Yeung Chun Pong 案中，上訴法庭從沒特別指明，法庭只在考慮基於「雙重損害」，構成濫用程序的擱置法律程序申請時，才須極度審慎，並只在最特殊的情況下才受理申請。「嚴𧫴原則」適用於所有要求法庭因濫用程序而行使酌情權永久擱置的申請（見 HKSAR v Lee Ming Tee & Another (No.1) (2001)  4 HKCFAR 133 第 148F-151J）。亦見上訴法庭於 Yeung Chun Pong 案的判詞中第 25 段。

44.控方援引的第 71 至 78 段並非上訴法庭判決的原因（ratio decidendi ），而是結論（Conclusion）之後的跋文（Addendum）。上訴法庭目睹該案迂迴曲折及無理的申請，及業界濫用「永久擱置」申請的情況，所以認為對一些毫無可取之處的申請作出批評。上訴法庭指出：

“Addendum

59.  This case provides an opportunity to say something about the use of collateral challenges to criminal proceedings in train and about the fashion that has developed in this jurisdiction –as elsewhere – of making stay applications, and to remind the courts, without derogating from their duty to prevent abuse, of the boundary between the courts’ function and that of the prosecutor.

Collateral challenges

60.  This case is a good example of what can happen as a result of collateral applications in criminal proceedings…

60.  … This history well illustrates why courts instinctively baulk at collateral challenges in criminal proceedings and why they should be rare.  In our 2006 decision, we explained why an arguable plea in bar was properly the subject of a collateral challenge but the ambit of such a plea is narrow indeed and was never arguable in this case; and what we now find is that the plea issue is abandoned, nearly three years after it was first raised and made the centerpiece of the case.  This is not an edifying history.

61.  The argument about the plea in bar is properly abandoned.  It was never maintainable and the amount of time and the delay occasioned by this meritless argument is singularly unfortunate.  That is not to say that where there is an arguable plea in bar there should not be such a challenge; although a well-founded plea in bar will be a rare animal indeed.  But it is to say that collateral challenges to refusals of applications for a stay of proceedings, decisions that are made in the exercise of the trial court's discretion, should, save in the most exceptional circumstances, not be entertained. …

63.  There is a clear public interest in ensuring that charges, once before a court, must be tried.  There is built into the system a host of safeguards to secure for an accused a fair, and an appropriately speedy, determination.…

Stay Applications

67.  It is obvious to this Court that stay applications constitute a growth industry in this jurisdiction.  It is a habit that seems to be considered in some quarters as almost de rigeur; and tribunals at first instance should ever be aware of the exceptional circumstances in which applications for a stay may succeed.

68.  Courts elsewhere have also become increasingly troubled by the frequency of applications to stay proceedings on the grounds of abuse of process, and by assumptions made as to the extent of the discretion.  This is not to assert that meritorious applications are never made, nor to discourage counsel from their clear duty when their professional judgment, properly informed of the exceptional circumstances that will warrant a stay, dictates the making of an application.  Yet it is obvious at every level of our court system that unmeritorious applications are made far too frequently.  The effect is to prolong court proceedings, to cause them to be interrupted by collateral applications upon review, and unnecessarily to increase costs and the burden upon the administration of justice.

69.  It should by now be recognized as trite that the power to order a stay in is to be used only in the most exceptional circumstances: Lee Ming Tee; and, in the context of suggested double jeopardy cases, Lord Devlin noted in DPP v Humphrys that:

If there is the power which my noble and learned friends think there is to stop a prosecution on indictment in limine, it is in my view a power that should only be exercised in the most exceptional circumstances.

70.  In R v Childs, Lord Woolf, Lord Chief Justice, is reported to have said that:

“… the court could not but be aware that up and down the country it was now the practice to raise arguments of abuse of process.  Those arguments distorted the trial process in cases where they were not appropriate.

Practitioners should not advance arguments of abuse of process unless they were warranted.  If they were advanced when they were not warranted, the court should make it clear that that was inappropriate conduct and would take appropriate steps where, as sometimes happens, a huge amount of court time was wasted in consequence.

The trial process was complicated enough.  It was not desirable to add to that complexity by putting forward unnecessary allegations.

There were cases where allegations of abuse of process were properly warranted.  Where they were properly warranted, counsel for the defence must put them forward.  But they should not be put forward as mere embroidery of a case which could be advanced equally satisfactorily without t.”

71.A similar sentiment has been expressed in Australia:

“If permanent stay orders were to become commonplace, it would not be long before courts would forfeit public confidence.  The granting of orders for permanent stays would inspire cynicism, if not suspicion in the public mind.”

72.  There is one further concern, which is the manner in which some have sought to utilize the decision in Dairy Farm Co.  Ltd v Director of Food and Hygiene so as to import the notion that a prosecution should be stayed because the case is weak or because someone else more culpable ought instead to have been prosecuted.  One might have thought that such a notion had long ago been put to rest.  We are not here addressing cases where a prosecution may be stayed because the prosecution has been instituted for an improper purpose, as in Williams v Spautz or where conduct by a prosecutor constitutes an affront to the public conscience; but rather cases in which the court is asked to stay a prosecution on the ground that the evidence is insufficient to support a conviction.

73.The care which the courts must take not to overstep the boundary of their function was highlighted in Humphrys, first by Viscount Dilhorne:

“A judge … should not have or appear to have any responsibility for the institution of a prosecution.  The functions of prosecutors and of judges must not be blurred.  If a judge has power to decline to hear a case because he does not think it should be brought, then it may be thought that the cases he allows to proceed are cases brought with his consent or approval.”

and by Lord Salmon who said:

“I respectfully agree … that a judge has not and should not appear to have any responsibility for the institution of prosecutions; nor has he any power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought.”

74.  So, too, in Environment Agency v Stanford, the Divisional Court of the Queen’s Bench Division said that:

It should also be noted that the jurisdiction to stay a case, as has been repeatedly emphasised, must be exercised with extreme caution.  Time and again, parties relying on the case of Bennett, [would] invite the lower courts to exercise an ill-defined discretion to stay a case by assessing whether a prosecution was well advised.  It was necessary to stress that this was not an issue for the court; the question of whether or not to prosecute was for the prosecution.  Most of the points relied upon in support of an argument of abuse of process went to mitigation.  The circumstances in which the court can intervene to stop a prosecution are very limited.  At present, many applications to stay were made in quite inappropriate circumstances.  A successful application to stay, which is then overturned on appeal, did no service to the defendant.

45.Yeung Chun Pong 案中，上訴法庭於第 73、76 至 78 段所指的是，如在法庭聽取證供前已認為控方證供不足，法庭是否應永久擱置法律程序「to stop a prosecution on indictment in limine」（見下文就 Humphrys 案的討論）。本案中，辯方從來沒有類似的申請。

46.就 Humphrys 案的陳詞，控方指稱援引及依賴第 23B 至25F 段 ，並於陳詞第 11 段中例出指稱的段落 。

47.Humphrys 案亦源自一宗交通意外。被告人被控一項於 1972 年無牌駕駛。審訊時，唯一的論點是警員有否誤認被告人為涉案電單車的司機。被告人作供時否認曾於 1972 年駕駛任何車輛，最後被裁定罪脫。後來被告人被控於無牌駕駛案中作偽證（perjury）。於第二次的法律程序中，控方倚賴同一名警員的證供。原審法官否決辯方提出的「不容反悔的論點」（Issue Estoppel），容許警員作供；結果被告人被定罪。之後被告人成功於上訴法庭推翻定罪。控方不服判決，向上議院提出上訴；上訴得直。

48.首先，控方聲稱援引 Humphrys 案的第 23D 及 24B 段。這是 Viscount Dilhorne 判詞的一部份。Viscount Dilhorne 於判詞第 14 頁 F-H 引述於 Humphrys 案辯方獲得上訴許可的論點為：

“The Court of Appeal … [1976] Q.B.  191 allowed the respondent's appeal against his conviction for perjury.  Later the prosecution was given leave to appeal to this House, it being certified that the following point of law of general public importance was involved, namely:

“Where in a trial on indictment there is a single issue between prosecution and defence and the defendant is acquitted, is evidence tending to show that the defendant was guilty of that offence admissible in a subsequent prosecution of the defendant for perjury committed during the first trial?

The appeal was allowed on the ground that the doctrine of issue estoppel applied.  The question, was the respondent the rider of the motor cycle on July 18, 1972, having been determined by the jury at the first trial in the respondent's favour, Police Constable Weight could not, it was held, testify in the second trial that the respondent was the rider on that date in support of the charge that the respondent had falsely sworn that he had not driven a vehicle in 1972.（強調後加）

49.顯而易見，Humphrys 案獲上訴許可的論點為 「不容反悔的論點」（Issue Estoppel）及警員的供詞是否可接納的證供（admissible evidence），而非「一罪兩審」（autrefois convict / autrefois acquit）或「免受雙重損害」（rule against double jeopardy）。

50.於該案聆訊期間，辯方突然提及「一罪兩審」的原則，並指適用於該案 [見第 15 頁 A 至 C]:

“The judgment of the court did not refer to the evidence of the three neighbours or to the forged application for the licence.  Although it does not appear to have been argued in the Court of Appeal that the respondent could rely on autrefois acquit as a ground for excluding Police Constable Weight's evidence, Mr.  Harvey for the respondent submitted that the scope of that plea had been extended over the years and that it applied in this case.  [第 15 頁 A]

So, in this appeal the following questions arise for decision: (1)  does the doctrine of issue estoppel apply in the criminal law? (2)  does autrefois acquit apply in this case; and (3)  if issue estoppel or autrefois acquit applies, does that prevent Police Constable Weight's evidence being given on the perjury charge? [第 15 頁 B]

Issue estoppel, if it applies in criminal cases, must be distinguished from the pleas of autrefois convict and autrefois acquit. [第 15 頁 C]

51.亦因此， 上議院才提及 Connelly 案 [見第 15 頁 D 至 16 頁 E ]。 Viscount Dilhorne 引述 Lord Morris of Borth-y-Gest 於 Connelly 案對 「一罪兩審」的 9 項原則：

The pleas of autrefois acquit and autrefois convict do not depend on an issue being determined in an earlier trial but on the result of that trial.  In the course of his speech in Connelly v.  Director of Public Prosecutions [1964] A.C.  1254 my noble and learned friend Lord Morris of Borth-y-Gest made a full and comprehensive review of the law relating to the plea of autrefois acquit.  He pointed out, at p.  1306, that Blackstone in his Commentaries, Book IV (1759 ed.), p.  329, had said that the pleas of autrefois acquit and autrefois convict were:

“‘…grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life, more than once, for the same offence”

and said, at p.  1305, that in his view both principle and authority established nine propositions, the first four of which were:

“(1)  that a man cannot be tried for a crime in respect of which he has previously been acquitted or convicted; (2)  that a man cannot be tried for a crime in respect of which he could on some previous indictment have been convicted; (3)  that the same rule applies if the crime in respect of which he is being charged is in effect the same, or is substantially the same, as either the principal or a different crime in respect of which he has been acquitted or could have been convicted or has been convicted; (4)  that one test as to whether the rule applies is whether the evidence which is necessary to support the second indictment, or whether the facts which constitute the second offence, would have been sufficient to procure a legal conviction upon the first indictment either as to the offence charged or as to an offence of which, on the indictment, the accused could have been found guilty;…” [第 15 頁 D - G]

The respondent in the present case was not at the second trial being tried for a crime in respect of which he had previously been acquitted or convicted.  He was not tried for a crime of which he could have been convicted on the first indictment.  The offence of perjury is not the same or substantially the same as the offence of which he was acquitted, and the evidence necessary to support the second indictment was not evidence which proved that he had been driving while disqualified.  Reliance by the respondent on autrefois acquit does not therefore suffice to sustain the conclusion of the Court of Appeal.

I need not quote my noble and learned friend's fifth and sixth propositions but I must refer to his last three.  They were, at p.  1306:

“(7)  that what has to be considered is whether the crime or offence charged in the later indictment is the same or is in effect or is substantially the same as the crime charged… and that it is immaterial that the facts under examination or the witnesses being called in the later proceedings are the same as those in some earlier proceedings; (8)  that, apart from circumstances under which there may be a plea of autrefois acquit, a man may be able to show that a matter has been decided by a court competent to decide it, so that the principle of res judicata applies; (9)  that, apart from cases where indictments are preferred and where pleas in bar may therefore be entered, the fundamental principle applies that a man is not to be prosecuted twice for the same crime.”

The eighth proposition is based not on double jeopardy but on res judicata and I must confess to difficulty in reconciling it with the words I have underlined in the seventh proposition.  If the eighth proposition is correct, and it amounts to issue estoppel, it will not be immaterial that the facts under consideration in the later proceedings are the same as those in the earlier proceedings if the issue to which those facts relate has been determined by a competent court in earlier proceedings.

52.顯而易見的是，Viscount Dilhorne 對 Lord Morris 於 Connelly 案就「一罪兩審」所述 9 大原則的第 1 至 7 及 9 項均沒有異議。Viscount Dilhorne 只是質疑第 8 項原則，而他亦清楚指出第 8 項原則與 「免受雙重損害」無關。

53.控方聲稱依賴  Humphrys 案第 23B 至 25F 段，並於陳詞中例出指稱關鍵的段落。事實上，控方例出的只是第 23D 、 24B 、25F 及 26A-D 段。問題是，該些段落中，其中重要的一段是 23C 段：

“My noble and learned friends Lord Salmon and Lord Edmund-Davies have raised a question of very great importance discussed in Connelly v.  Director of Public Prosecutions … but not argued on this appeal as to the powers of a court to quash an indictment.  A decision on this is not necessary for the disposal of this appeal and while I recognise that anything said on it is obiter in view of its importance I have felt it necessary to add some observations thereon to my speech.  [第 23 頁 C 段]

54.Viscount Dilhorne 清晰指明控辯雙方於 Humphrys 案內法庭撤銷（quash）控罪（indictment）的權力根本從沒爭論。因此，上議院亦無須對該論點作出判決。 Viscount Dilhorne 對 Connelly 案有一些觀察 （包括 23D 至 26F，但該些觀察均為法官的附錄意見(obiter) 。 [第 23 頁 C-D]

55.於附錄意見中（第 23D 至 26F 段），Viscount Dilhorne 指：

In the first place it has to be noted that in Connelly v.  Director of Public Prosecutions the House was not concerned with the power of a court to quash any indictment it thought oppressive or vexatious.  It was concerned with the propriety of a second trial on evidence on which the accused had already been tried for another offence, it being, as Lord Devlin said, at p.  1346, the appellant's contention that the trial of Connelly twice on the same set of facts offended against the spirit of the rule against double jeopardy.  Lord Devlin was of the opinion that judges of the High Court had inherent jurisdiction to make and enforce rules of practice in order to ensure that the court's process was used fairly and conveniently by both sides.  He thought there was a general power to prevent unfairness to the accused and he supported these conclusions by referring to cases where counts had been unfairly included in indictments [第 23 頁 D-F].

I do not dissent from these views, but it does not follow that the inherent power of the court goes to the length of giving the power to a judge to prevent an indictment properly preferred from being proceeded with, and the question which arises in the light of what my noble and learned friends have said is to what extent, to what lengths, does this inherent power of the court go? Does it extend to denying access to the courts to a prosecutor who seeks to prosecute for perjury? An indictment for that offence will not ordinarily be preferred if the accused has not been committed for trial and the magistrates have not been satisfied that there is a prima facie case.  … [第 23 頁 F-G]

I agree and this right of an individual to bring a private prosecution is clearly recognised in the Administration of Justice (Miscellaneous Provisions)  Act 1933, section 2 … [第 24 頁 A-B]

Where an indictment has been properly preferred in accordance with the provisions of that Act, has a judge power to quash it and to decline to allow the trial to proceed merely because he thinks that a prosecution of the accused for that offence should not have been instituted? I think there is no such general power and that to recognise the existence of such a degree of omnipotence is, as my noble and learned friend Lord Edmund-Davies has said, unacceptable in any country acknowledging the rule of law.  But saying this does not mean that there is not a general power to control the procedure of a court so as to avoid unfairness.  If at the time of Connelly v.  Director of Public Prosecutions it had been possible to try the murder and robbery charges together, then it might well have been held unfair, oppressive and an abuse of process for them to be tried separately, each charge being based on the same evidence.  But that is very different from saying that a judge has power to stop a prosecution for perjury just because he thinks it should not have been brought and that it will show that the verdict at the trial at which it is alleged the perjury was committed should have been guilty [第 24 頁 B-D].

Lord Pearce in Connelly v.  Director of Republic Prosecutions agreed with Lord Devlin's views and Lord Reid, after saying that he agreed with the speeches of Lord Devlin and Lord Pearce, said, at p.  1296, that the practice he proposed would "… avoid any general question as to the extent of the discretion of the court to prevent a trial from taking place." He thought there must always be a residual discretion to prevent anything which savours of abuse of process [第 24 頁 D-E].

The Administration of Justice (Miscellaneous Provisions)  Act 1933, section 2 (1), states that a bill signed in accordance with the Act "… shall thereupon become an indictment and be proceeded with accordingly:…" and in Reg.  v.  Middlesex Quarter Sessions (Chairman), Ex parte Director of Public Prosecutions [1952] 2 Q.B.  758 delivering the judgment of a court of five which included Lord Devlin and Lord Parker [then Devlin and Parker JJ.], Lord Goddard C.J.  strongly criticised the chairman for having, after intimating before the trial commenced that he did not think any jury would convict on what was in the depositions, directed the jury to acquit without their having heard any evidence and said, at p.  767: "It was not for the chairman to try the case himself.  The prosecution had a right to present their case.” [第 24 頁 E-G]

In Reg.  v.  Chairman, London County Quarter Sessions, Ex parte Downes [1954] 1 Q.B.  1 where the chairman quashed the indictment as he thought the evidence contained in the depositions insufficient to support a conviction Lord Goddard C.J.  said, at p.  6:

“Once an indictment is before the court the accused must be arraigned and tried thereon unless (a)  on motion to quash or demurrer pleaded it is held defective in substance or form and not amended; (b)  matter in bar is pleaded and the plea is tried or confirmed in favour of the accused; (c)  a nolle prosequi is entered by the Attorney-General, which cannot be done before the indictment is found; or (d)  if the indictment disclosed an offence which a particular court has no jurisdiction to try,…” [第 24 頁 G 至 第 25 頁 A]

This passage was endorsed by Lord Morris of Borth-y-Gest and Lord Hodson in Connelly v.  Director of Public Prosecutions [1964] A.C.  1254.  Lord Hodson thought that Lord Goddard had stated the true position as to the circumstances in which an indictment could be quashed and the limits of the power of the court to prevent an indictment duly instituted from being prosecuted.  Lord Morris of Borth-y-Gest said, at pp.  1299-1300:

“The learned judge declined to give any direction to the prosecution that they should not proceed.  They did proceed, and in due course the appellant was convicted.  My Lords, in my view the learned judge was entirely correct in so declining.  He had no power to suppress the prosecution.  There was no abuse of the process of the court.  The indictment was correct in form.  There was no basis for the quashing of it.  Should it, then, be said (in a somewhat vague and imprecise way)  to have been 'unfair' that the appellant should have been tried on the second indictment? The guiding principles as to what is fair and in the interests of justice have been evolved over the centuries: some of them, indeed, find their expression in the rules governing the pleas of autrefois acquit and autrefois convict and other kindred pleas; but if an appellant, being faced with a charge, cannot show that any of these pleas avail them, why is it unfair that he should take his trial? He will not be convicted unless his guilt of the charge is established so that a jury are quite sure of it.  Why is that contrary to the interests of justice?” [第 25 頁 B-E]

He went on to say, at p.  1300:

“I consider that if a charge is preferred which is contained in a perfectly valid indictment which is drawn so as to accord with what the court has stated to be correct practice and which is presented to a court clothed with jurisdiction to deal with it and if there is no plea in bar which can be upheld the court cannot direct that the prosecution must not proceed.” [第 25 頁 E-F]

It does not appear to me to have been necessary in Connelly v.  Director of Public Prosecutions to decide whether a judge had power to stop any prosecution in limine, and while I recognise that some of the speeches contained observations of a very general and far-reaching character, I cannot see any reason for thinking that any members of the House would have held that a judge could, in his discretion, prevent the trial of a person for perjury after the alleged perjury had secured his acquittal on the ground that in the judge's view as a matter of policy the prosecution should not have been brought, was unfair, oppressive and an abuse of process.  In this connection I regard the observations of Lord Morris of Borth-y-Gest as very pertinent.  In Connelly v.  Director of Public Prosecutions the House was concerned and only concerned with a second trial for a different offence on the same evidence as the first trial and that is a very different situation from that now under consideration [第 25 頁 F 至 第 26 頁 A]

In Mills v.  Cooper [1967] 2 Q.B.  459 where magistrates had dismissed a summons on the ground that it was oppressive and an abuse of the process of the court Lord Parker C.J., while holding that it was not, said, at p.  467:

“…every court has undoubtedly a right in its discretion to decline to hear proceedings on the ground that they are oppressive and an abuse of the process of the court.”

I must confess to some doubt whether this is a correct statement of the law in relation to magistrates' courts.  If it is, it appears to me to be fraught with considerable dangers.  One bench thinking a prosecution should not have been brought will dismiss it as oppressive and vexatious.  Other benches on precisely the same facts may take a completely different view, with the result that there is a lack of uniformity in the administration of justice.  [第 26 頁 B-C]

Nor is the existence of the power my noble and learned friends Lord Salmon and Lord Edmund-Davies think the judge has and its exercise without considerable dangers.

A judge must keep out of the arena.  He should not have or appear to have any responsibility for the institution of a prosecution.  The functions of prosecutors and of judges must not be blurred.  If a judge has power to decline to hear a case because he does not think it should be brought, then it soon may be thought that the cases he allows to proceed are cases brought with his consent or approval.

If there is the power which my noble and learned friends think there is to stop a prosecution on indictment in limine, it is in my view a power that should only be exercised in the most exceptional circumstances.  In cases where there could be one trial for more than one offence and it is sought without good reason to have two trials on the same facts, it may be right to exercise it but I cannot think that any question of double jeopardy arises on a perjury charge or that it is right that the power should be exercised by a judge from whose decision there is no appeal, simply because in his view there should be few prosecutions for perjury, when perjury is all too frequent, and because the result of a successful prosecution for perjury may lead to the inference that the accused is guilty of the offence of which in consequence perhaps of his perjury he was acquitted.  [第 26 頁 E-G]

My answer to the question certified in this case is that …[第 26 頁 G 至 27 頁 A ]

56.Humphrys 判詞中第 23D 至 26F 段全部均為 Viscount Dilhorne 的附錄意見（obiter）。Viscount Dilhorne 對案件的結論是於第26頁 G至 27頁A。從 Viscount Dilhorne 的用語及舉例，他於第23頁 D至25 頁F 所討論的情況是，控方正當地提出檢控，檢控並無濫用程序，但個別法官基於本身的看法或政策，拒絕開審聽取證供，更撤銷控罪（indictment quashed in limine），與「免受雙重損害」根本完全無關。Viscount Dilhorne 於第26 頁B-C 解釋為何法官不應在上述情況下撤銷控罪。他指一名法官可能認為證據不足，但其他法官看見同樣的證供，則可能認為證據十足。如容許法官在上述的情況下撤銷控罪，便會引致司法不一致的危機（而非控方所指「過分依賴個別法庭就個別案件事實作出的裁定，導致司法不一致的危機」）。

57.控方指上議院於 Humphrys 案對 Connelly 案作出了相當程度的警惕及規範，完全是扭曲事實。控方對 23D 至 25F 乃附錄意見一事不但隻字不提，還稱該些段落對 Connelly 案作出嚴重規限，有誤導法庭之虞。

58.控方亦援引英國上議院於 R v Horseferry Road Magistrates’ Court, Ex parte Bennett [1994] 1 AC 42 的第 63F-H 段，指上議院不但延續，更進一步肯定 Humphrys 案的原則。她指上議院肯定「法庭就濫用程序擱置案件的酌情權，乃非常 “侷” 限（very strictly confined）及鮮有被行使的（a power to be most sparingly exercised）。

59.R v Horseferry Road Magistrates’ Court Ex parte Bennett 並非基於「免受雙重損害」，而是基於濫用程序的申請。更重要的是，於該案中，上訴人要求上議院再擴濶 / 放寬擱置法律程序的門檻（見 59C 至 63G），即警方或控方使用不當手段，於國外拒捕被告人回國受審亦構成濫用法律程序：

“Your Lordships have been urged by the respondent to uphold the decision of the Divisional Court and the nub of their submission is that the role of the judge is confined to the forensic process.  The judge, it is said, is concerned to see that the accused has a fair trial and that the process of the court is not manipulated to his disadvantage so that the trial itself is unfair: but the wider issues of the rule of law and the behaviour of those charged with its enforcement, be they police or prosecuting authority, are not the concern of the judiciary unless they impinge directly on the trial process.  In support of this submission your Lordships have been referred to Reg.  v.  Sang [1980] A.C.  402 and those passages in the speeches of Lord Diplock, at pp.  436-437, and Lord Scarman, at pp.  454-455…[第 59 頁 C-H）

The appellant contends for a wider interpretation of the court's jurisdiction to prevent an abuse of process and relies particularly upon the judgment of Woodhouse J.  in Reg.  v.  Hartley, the powerful dissent of the minority in United States v.  Alvarez-Machain and the decision of the South African Court of Appeal in S.  v.  Ebrahim, 1991 (2)  S.A.  553…[第 60 頁 B-C]

In answer to the respondent's reliance upon Reg.  v.  Sang [1980] A.C.  402 the appellant points to section 78 of the Police and Criminal Evidence Act 1984 which enlarges a judge's discretion to exclude evidence obtained by unfair means [第 61 頁 A-B]

As one would hope, the number of reported cases in which a court has had to exercise a jurisdiction to prevent abuse of process are comparatively rare.  They are usually confined to cases in which the conduct of the prosecution has been such as to prevent a fair trial of the accused.  In Reg.  v.  Derby Crown Court, Ex parte Brooks (1984)  80 Cr.App.R.  164, 168-169, Sir Roger Ormrod said:

“The power to stop a prosecution arises only when it is an abuse of a process of the court.  It may be an abuse of process if either (a)  the prosecution have manipulated or misused the process of the court so as to deprive the defendant of a protection provided by the law or to take unfair advantage of a technicality, or (b)  on the balance of probability the defendant has been, or will be, prejudiced in the preparation or conduct of his defence by delay on the part of the prosecution which is unjustifiable .  .  .  The ultimate objective of this discretionary power is to ensure that there should be a fair trial according to law, which involves fairness to both the defendant and the prosecution.”

There have, however, also been cases in which, although the fairness of the trial itself was not in question, the courts have regarded it as so unfair to try the accused for the offence that it amounted to an abuse of process.  In Chu Piu-wing v Attorney-General [1984] HKLR 411 the Hong Kong Court of Appeal allowed an appeal against a conviction for contempt of court for refusing to obey a subpoena ad testificandum on the ground that the witness had been assured by the Independent Commission Against Corruption that he would not be required to give evidence…[第 61 頁 D-F]

And in a recent decision of the Divisional Court in Reg.  v.  Croydon Justices, Ex parte Dean [1993] Q.B.  769, the committal of the accused on a charge of doing acts to impede the apprehension of another contrary to section 4(1)  of the Criminal Law Act 1967 was quashed on the ground that he had been assured by the police that he would not be prosecuted for any offence connected with their murder investigation and in the circumstances it was an abuse of process to prosecute him in breach of that promise [第 61 頁 G].

Your Lordships are now invited to extend the concept of abuse of process a stage further. In the present case there is no suggestion that the appellant cannot have a fair trial, nor could it be suggested that it would have been unfair to try him if he had been returned to this country through extradition procedures.  If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law [第 61 頁 H 至 62 頁 B].

My Lords, I have no doubt that the judiciary should accept this responsibility in the field of criminal law.  The great growth of administrative law during the latter half of this century has occurred because of the recognition by the judiciary and Parliament alike that it is the function of the High Court to ensure that executive action is exercised responsibly and as Parliament intended.  So also should it be in the field of criminal law and if it comes to the attention of the court that there has been a serious abuse of power it should, in my view, express its disapproval by refusing to act upon it [第 62 頁 B-C].

Let us consider the position in the context of extradition.  Extradition procedures are designed not only to ensure that criminals are returned from one country to another but also to protect the rights of those who are accused of crimes by the requesting country.  Thus sufficient evidence has to be produced to show a prima facie case against the accused and the rule of speciality protects the accused from being tried for any crime other than that for which he was extradited.  If a practice developed in which the police or prosecuting authorities of this country ignored extradition procedures and secured the return of an accused by a mere request to police colleagues in another country they would be flouting the extradition procedures and depriving the accused of the safeguards built into the extradition process for his benefit.  It is to my mind unthinkable that in such circumstances the court should declare itself to be powerless and stand idly by; I echo the words of Lord Devlin in Connelly v.  Director of Public Prosecutions [1964] A.C.  1254, 1354:

“The courts cannot contemplate for a moment the transference to the Executive of the responsibility for seeing that the process of law is not abused.”

The courts, of course, have no power to apply direct discipline to the police or the prosecuting authorities, but they can refuse to allow them to take advantage of abuse of power by regarding their behaviour as an abuse of process and thus preventing a prosecution… [第 62 頁 C-F]

The question then arises as to the appropriate court to exercise this aspect of the abuse of process of jurisdiction.  It was submitted on behalf of the respondent that the examining magistrates have no power to stay proceedings on the ground of abuse of process and reliance was placed on the decisions of this House in Reg.  v.  Governor of Pentonville Prison, Ex parte Sinclair [1991] 2 A.C.  64 and Atkinson v.  United States of America Government [1971] A.C.  197, which established that in extradition proceedings a magistrate has no power to refuse to commit an accused on the grounds of abuse of process.  But the reason underlying those decisions is that the Secretary of State has the power to refuse to surrender the accused if it would be unjust or oppressive to do so; and now under the Extradition Act 1989 an express power to this effect has been conferred upon the High Court.  [第 62 頁 H 至 第 63 頁 B]

Your Lordships have not previously had to consider whether justices, and in particular committing justices, have the power to refuse to try or commit a case upon the grounds that it would be an abuse of process to do so.  Although doubts were expressed by Viscount Dilhorne as to the existence of such a power in Reg.  v.  Humphrys [1977] A.C.  1, 26, there is a formidable body of authority that recognises this power in the justices [第 63 頁 B-C]

In Mills v.  Cooper [1967] 2 Q.B.  459, Lord Parker C.J.  hearing an appeal from justices who had dismissed an information on the grounds that the proceedings were oppressive and an abuse of the process of the court said, at p.  467:

“So far as the ground upon which they did dismiss the information was concerned, every court has undoubtedly a right in its discretion to decline to hear proceedings on the ground that they are oppressive and an abuse of the process of the court.”

Diplock L.J.  expressed his agreement with this view, at p.  470F.  In Reg.  v.  Canterbury and St.  Augustine Justices, Ex parte Klisiak [1982] Q.B.  398, 411f, Lord Lane C.J.  was prepared to assume such a jurisdiction.  In Reg.  v.  West London Stipendiary Magistrate, Ex parte Anderson (1984)  80 Cr.App.R.  143, Robert Goff L.J., reviewing the position at that date said, at p.  149:

“There was at one time some doubt whether magistrates had jurisdiction to decline to allow a criminal prosecution to proceed on the ground that it amounted to an abuse of the process of the court: see Director of Public Prosecutions v.  Humphrys (1976)  63 Cr.App.R.  95, 144; [1977] A.C.  1, 19, per Viscount Dilhorne.  However, a line of authority which has developed since that case has clearly established that magistrates do indeed have such a jurisdiction: see in particular Brentford Justices, Ex parte Wong (1981)  73 Cr.App.R.  67; [1981] Q.B.  445; Watford Justices, Ex parte Outrim (1982)  [1983] R.T.R.  26; Grays Justices, Ex parte Graham (1982)  75 Cr.App.R.  229; [1982] 3 All E.R.  653.  The power has, however, been described by the Lord Chief Justice as being 'very strictly confined:' see Oxford City Justices, Ex parte Smith (1982)  75 Cr.App.R.  200, 204.” [第 63 頁 C-F]

60.於 Horseferry 案，上議院的討論一直圍繞警方違反正常引渡機制是否構成濫用程序；而顯而易見控方援引的段落是關乎在上述情況下，裁判官有否司法管轄權去擱置法律程序。上議院不但沒有如控方所指「延續及加以肯定」Viscount Dilhorne 於 Humphrys 案就這議題的見解，反而是否定該見解 （見判詞第 63 頁 F 至 H）。

61.毫無疑問，上級法院的判決對本席絕對有約束力。本席謹記，一般而言，法庭在極特殊的情況下才可擱置法律程序，亦會以最嚴𧫴的態度處理本案的申請。可是控方的陳詞不但不準確，還一次又一次將跋文（Addendum）及附錄意見（obiter dicta）指為上級法庭的判決，更將案例中的段落斷章取義（taken out of context）。

62.就「免受雙重損害」，適當的測試為：

(1)  某人面對第二次審訊，而導致該審訊的事實是否與導致首次審訊的事實相同或大致相同；及

(2)  檢控人員能否提出特別或特殊情況，以支持進行第二次審訊。

63.法庭不可盲目地運用上級法庭訂明的原則，而是須根據個別案件的情況作裁決。因此，本案主要的論點應是本案的情況是否切合上述的測試。

「事實相同或大致相同」的定義

64.就「事實相同或大致相同」的解釋， 大律師援引英國上訴法庭於 R v Wangige [2021] 4 WLR 23 及 R v Phipps [2005] EWCA Crim 33:

R v Wangige

(1)  這亦是一宗以「免受雙重損害」申請永久擱置法律程序的申請。上訴人駕車撞到一名途人導致其死亡。警方的車輛檢驗專家認為涉案汽車碰撞前的缺陷不會影響車輛的操控和剎車性能。另一名專家分析了有關的閉路電視片段，並認為被告人駕駛車輛的速度約為每小時 30 英里。得出的結論是，一旦途人離開行人路，雙方都無法避免涉案的碰撞。結果上訴人於裁判法院被控 4 項控罪，包括在汽車上使用可能產生危險或導致他人受傷的裝置（輪胎、擋風玻璃、頭燈安裝及其他缺陷）、使用沒有有效測試證書的汽車、在意外發生後沒有停車及意外發生後沒有報案。上訴人承認四項控罪，被判處四個月監禁及停牌 14 個月。

(2)  死因研訊展開，就涉案汽車的速度問題提出質疑。這時警方才再次翻閱證據及尋找新的證據，包括來自另一名專家的意見。專家對閉路電視片段作分析後，認為案發時被告人駕駛車輛的速度約為每小時 46 英里（而非前專家所述的 30 英里）。案發路段的時速限制為每小時 30 英里。警方進一步從另一名車輛檢驗專家獲取意見。該專家指車上的缺陷可能被視為導致意外的因素。因此，上訴人於裁判法院被判刑 2 年後，因同一事件被控危險駕駛引致他人死亡。

(3)  面對第二次的檢控，上訴人以法律程序具有壓迫性和不公平為理由，向法院申請擱置新的法律程序。原審法官認為新的指控與之前的案件並非出於實質上相同的事實；就算新的控罪是源於相同的事實，也有特殊情況支持繼續起訴上訴人。 因此申請被駁回。上訴人於是在承認控罪後提出上訴。

(4)  英國上訴法庭指：

“41.  A convenient starting point is to be found in the statement of Cockburn CJ in the old case of R v Elrington (1861)  1 B & S 688 at p 688, where he said this: “…whether a party accused of a minor offence is acquitted or convicted, he shall not be charged again on the same facts in a more aggravated form.” The rationale for this restriction on subsequent trials is obvious.  It finds reflection in the principle, formerly conventionally expressed as a maxim in Latin, to the effect that no person shall be vexed twice in the same cause.  It also finds reflection in the further, and related principle, also formerly conventionally expressed as a maxim in Latin, that it is in the public interest that there be finality to litigation.

42.  The point was discussed, and the statement in R v Elrington approved, in the decision of the House of Lords in Connelly v Director of Public Prosecutions[1964] AC 1254.  That decision was directly concerned with the scope of the doctrine of autrefois acquit: which was decided to be narrow in scope.  But the House of Lords also identified two wider, albeit related, principles.  First, no person should be punished twice for an offence arising out of the same, or substantially the same, set of facts.  Second, there should be no sequential trials for offences on an ascending scale of gravity (the R v Elrington point).

43.  The position was, for example, stated in this way by Lord Devlin at pp.  1359-1360 of his speech:

“The result of this will, I think, be as follows.  As a general rule a judge should stay an indictment (that is, order that it remain on the file not to be proceeded with)  when he is satisfied that the charges therein are founded on the same facts as the charges in a previous indictment on which the accused has been tried, or form or are a part of a series of offences of the same or a similar character as the offences charged in the previous indictment … But a second trial on the same or similar facts is not always and necessarily oppressive, and there may in a particular case be special circumstances which make it just and convenient in that case.  The judge must then, in all the circumstances of the particular case, exercise his discretion as to whether or not he applies the general rule.”

44.  It is clear that one underpinning rationale for this approach is the well known principle set out in the civil case of Henderson v Henderson (1843)  3 Hare 100, 114–115, which was a case referred to by Lord Devlin with approval.  It was among other things there stated:

“…where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances)  permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case.”

As Lord Reid crisply put it in the Connelly case at p.  1296:

“So the general rule must be that a prosecutor should combine in one indictment all the charges which he intends to prefer.”

And as Lord Pearce said at p.  1367

“It would be an abuse if [the prosecutor] could bring up one offence after another based on the same incident, even if the offences were different in law, in order to make fresh attempts to break down the defence.”

45.  All this was considered and applied in R v Beedie [1998] QB 356).  In that case, a young woman had died in her rented bedsit of carbon monoxide poisoning caused by a defective gas fire and blocked flue.  The landlord was summarily prosecuted for regulatory offences under the Health and Safety at Work Act 1974.  He pleaded guilty and was fined.  Several months later, following an inquest at which he made various admissions, without having been warned that he was not obliged to answer any question tending to incriminate him, he was charged with (gross negligence)  manslaughter.  It was held in the Court of Appeal that such prosecution should be stayed.  The second offence as charged arose out of the same, or substantially the same facts, as the first offence.  As put by Rose LJ at p 366e, a stay should have been ordered because the manslaughter allegation was based on substantially the same facts as the earlier summary prosecution and gave rise to an offence of greater gravity, no new facts having occurred, in breach of the R v Elrington principle.  Further, the public interest in a prosecution for manslaughter and the concerns of the victim’s family did not constitute sufficient special circumstances.

46.  Just what may be involved in consideration of whether a subsequent prosecution was based on substantially the same facts was considered further by a constitution of this court in R v Phipps [2005] EWCA Crim 33—a decision surprisingly not included in any official law reports.

47.  In that case, a driver had been charged in the magistrates’ court with driving with excess alcohol and, on his plea of guilt, fined and disqualified from driving.  He had in fact been driving on the wrong side of the carriageway of the A3 road and had collided with a car.  Subsequent to that sentence, and following complaint from the driver of the other car, who had been injured, he was then charged with dangerous driving.  He applied for a stay of the Crown Court proceedings, relying on the R v Beedie decision.

48.  In refusing the application for a stay, the Crown Court judge drew a distinction between the charges, saying that the first offence related to the amount of alcohol in the blood whereas the second offence related to the manner of the driving.

49.  The Court of Appeal disagreed with this approach.

50.  The applicable general approach was stated by Clarke LJ, giving the judgment of the court, in these terms at para.  21:

“The authorities do not consider in detail what is meant by the same or substantially the same facts but, in our view, as Lord Pearce [in Connelly] makes clear in the passage already quoted, they essentially mean that the Crown should not be permitted, save in special or exceptional circumstances, to bring a second set of proceedings arising out of the same incident as the first set of proceedings after the first set of proceedings has been concluded.  The principle (which is in essence that identified in the civil law by Wigram CJ in Henderson v Henderson)  is that the Crown should decide at the outset, or at the latest before the conclusion of the first set of proceedings, what charges it wishes to bring arising out of the same incident.  Any other approach is unfairly oppressive to a defendant.  It is for that reason that the burden is on the Crown to identify special or exceptional circumstances to justify such a course…”

51.  As to the actual offences arising in R v Phipps, they were of course different in law.  But as Clarke LJ put it at para 27: “Both the allegations arose out of the fact that the appellant was driving his car on the A3 at Malden in an unlawful manner”.  As further there pointed out, the manner of the driving had also been relevant to the penalty imposed on the first offence; and, on the second offence, the fault of driving with excess alcohol would be relevant both as to the nature of the driving (since the effects of alcohol potentially bore on the issues of driving dangerously)  and as to the penalty for dangerous driving.  The court then went on at para 29 to say this:

“In all these circumstances, it seems to us that both these prosecutions and the allegations in them arose out of the same or substantially the same facts, namely driving the appellant’s car on the A3 at Malden.  They both arose out of that same incident, in much the same way as in Beedie…” （強調後加）

R v Phipps

(1)  該案中，上訴人酒後駕駛，導致一名女途人身體多處擦傷和瘀傷，上訴人則肋骨骨折。上訴人隨後被控一項酒後駕駛罪。他於裁判法院認罪，被判罰款 300 英鎊及停牌 12 個月。

(2)  上訴人在裁判法院被判刑後，受害人或其家屬與記者聯絡，投訴量刑。因媒體的報道，檢控機關再次考慮該案件，並在上訴人認罪的兩個月後，控告上訴人危險駕駛。第二次檢控聆訊時，上訴人指出危險駕駛和酒後駕駛罪的案情是出於相同或實質上相同的事實，因此控方濫用司法程序。原審法官駁回上訴人的說法，並裁定危險駕駛罪和酒後駕駛罪的指控並非出於相同或實質上相同的事實，於是，上訴人承認控罪。

(3)  後來，上訴人就定罪提出上訴；上訴得直。上訴庭指：

“9.  …It appears to us that in order to determine this question it is necessary first to identify the correct legal principles and then to apply them to the facts.

Principle

10.  The propositions advanced on behalf of the appellant may be summarised as follows.  1.  Subject to proposition 2, no one should be punished twice for an offence arising out of the same or substantially the same set of facts.  To do so would offend the principle that a defendant is not to be tried again on the same or substantially the same facts for more serious offences on an ascending scale of gravity.  2.  Proposition 1 does not apply where the prosecution shows that there are special or exceptional circumstances which make it just for a second prosecution to be brought.  Mr Amarasinha relies in particular upon R v Elrington …; Connelly v DPP … and R v Beedie ….  In the particular circumstances of this case he also relies upon R (on the application of Farley)  v Forest of Dean Justices [1990] RTR 228, [1990] Crim LR 568 and this passage in Archbold 2005 at para 32-29:

“Order of trials where there is an excess alcohol charge.

Where a defendant is facing two charges, one of dangerous driving and the other of driving with excess alcohol, based upon the same facts, the prosecution should choose either to proceed with the charge of dangerous driving and consider bringing the lesser charge if the defendant is acquitted, or to proceed with the excess alcohol charge alone.  The invariable rule is that where a person is tried on a lesser offence, he is not to be tried again on the same facts for a more serious offence.  A contrary course of action would amount to an abuse of the process of the court: see R (on the application of Farley)  v Forest of Dean Justices…”

11.  In our judgment, subject to some further elaboration, propositions 1 and 2 are correct.  They are soundly based on the authorities relied upon.

12.  The only scope for possible debate is whether the principle applies not only where the facts are the same but also where they are substantially the same and precisely what that means.

13.  The classic statement of principle is that of Cockburn CJ in Elrington.  In that case the co-accused has been summarily tried and acquitted of common assault.  He was subsequently indicted on the same facts for assault causing grievous bodily harm and assault causing actual bodily harm.  The accused demurred.  The demurrer was upheld.  The actual basis for the decision was that, by virtue of ss 28 and 29 of the Offences Against the Person Act 1828, a certificate of acquittal of common assault released the accused “from all further or other proceedings, civil or criminal, for the same cause”.  Had the justices thought the assault to be an aggravated one, they would, according to the procedure of the day, have sent it for trial.  However, Cockburn CJ made the following observation at page 696:

“… we must bear in mind the well-established principle of our criminal law that a series of charges shall not be preferred, and, whether a party, accused of a minor offence is acquitted or convicted he shall not be charged again on the same facts in a more aggravated form.”.

14.  That principle was approved by the House of Lords in Connelly.  This can perhaps be most clearly seen in the speech of Lord Devlin.  He said at pp 1356 and 1358 that the principle was essentially the same as that exemplified in the civil law in the classic statement of Wigram VC in Henderson v Henderson … at pp 114-115.  Lord Devlin expressly approved the statement of Cockburn CJ at pp 1357.  However, as we read his speech, he did not restrict the principle to a second trial on the same facts, but extended it to a trial on “the same or similar facts”: see p 1360.  See also per Lord Reid (at p 1296)  where he said:

“So the general rule must be that the prosecutor should combine in one indictment all the charges which he intends to prefer.”

15.  Lord Pearce put it this way at page 1367:

“It might seem at first sight that the second prosecution here is a breach of the 'well-established principle of our criminal law' referred to by Cockburn in R v Elrington and approved by Pollock B in R v Miles [(1890)  24 QB 243] that 'a series of charges shall not be preferred'.  Since the time when those words were spoken the joinder of charges in an indictment has been deliberately facilitated by the Indictments Act, 1915, and there is thus the more reason for saying that in general the prosecutor should join in one indictment all the charges that he wishes to prefer in respect of one incident.  It would be an abuse if he could bring up one offence after another based on the same incident, even if the offences were different in law, in order to make fresh attempts to break down the defence.”

16.  We note in passing that in the R v Forest of Dean Justices case in the Divisional Court Garland J said at p 235K that Connelly was authority for these propositions among others:

(1)  Pleas of autrefois acquit and autrefois convict must relate to a crime which is the same, or in the effect the same, as that originally charged.

(2)  There is a wider principle that a second trial involving the same or similar facts may in the discretion of the court be stayed if to proceed would be oppressive or prejudicial and therefore an abuse of the process of the court.

17.  We agree, subject to this.  The discretion is not unfettered and is a very different discretion from that exercised in the usual abuse of process case based, say, on excessive delay, where the burden of proof is on the defence.

18.  This can be seen from the decision of this court in Beedie.  …The trial judge, Clarke J, rejected a submission that the proceedings should be stayed as an abuse of process.  He carried out the kind of balancing exercise which is carried out in the ordinary case of an application for a stay where the burden is on the defendant and an important question is whether the defendant can have a fair trial: see, eg, A-G's Reference (No 1 of 1990) [1992] 3 All ER 169, 95 Cr App Rep 296.

19.  This court held that that approach was wrong and that the judge should have applied propositions 1 and 2 above.  Rose LJ, giving the judgment of the court, said at p 175C:

“In any event, consideration of whether or not the appellant could have a fair trial, which would have been material to an application to stay for abuse of process because of delay, was inappropriate.  A stay on such a ground is an exceptional course (see Attorney-General's Reference (No 1 of 1990) at page 303)  and the onus is on the defence to show that, on the balance of probabilities, no fair trial can be held; whereas the general rule presently under consideration is that there should be a stay, and it is for the prosecution to show that, for special circumstances, there should not be.”

In Beedie it was held that there were no specific circumstances and the appeal was allowed.

20.  It appears to us that the above principles are supported by the approach of the Divisional Court in R (on the application of Farley)  v Forest of Dean Justices even though the problem being considered there was somewhat different, as was the problem considered in R v Hartnett [2003] EWCA Crim 345, [2003] Crim LR 719.  In neither of those cases was the court concerned with a case where the second set of proceedings was only commenced after the first set of proceedings had been determined, which is the position here and was the position in Beedie.  The correct question on the authorities in a case of this kind is whether the second set of proceedings arise out of the same or substantially the same facts as the first.

21.  The authorities do not consider in detail what is meant by the same or substantially the same facts but, in our view, as Lord Pearce makes clear in the passage already quoted, they essentially mean that the Crown should not be permitted, save in special or exceptional circumstances, to bring a second set of proceedings arising out of the same incident as the first set of proceedings after the first set of proceedings has been concluded.  The principle… is that the Crown should decide at the outset, or at the latest before the conclusion of the first set of proceedings, what charges it wishes to bring arising out of the same incident.  Any other approach is unfairly oppressive to a defendant.  It is for that reason that the burden is on the Crown to identify special or exceptional circumstances to justify such a course.  Once the Crown has identified the charges it wishes to bring, it is a matter of case management how those charges are tried.  Thus it is a matter of case management where and when the trial or trials should take place.

22.  In these circumstances we are unable to accept the approach suggested by Mr Amer on behalf of the Crown in his skeleton argument.  He there submitted that the burden of establishing that the second set of proceedings amounts to an abuse of process is on the defence and that an abuse of process will occur when (a)  the defence has suffered serious prejudice to the extent that a fair trial could not take place (see R (on the application of Ebrahim)  v Feltham Magistrates')  Court [2001] 2 Cr App Rep 23 DC; (b)  the behaviour of the prosecution has been so bad that it is not fair that the defendant should be tried (see R (on the application of Ebrahim); and (c)  there has been an element of bad faith or at least some serious fault on the part of the prosecution (see R (on the application of Ebrahim)).  None of the above applied, he submitted, and therefore no abuse of process had occurred.

23.  In our view those submissions demonstrate precisely the same error as was made by the trial judge in Beedie.  We cannot therefore accept them.  For the reasons already given, the burden of establishing special or exceptional circumstances is on the Crown and the question is not whether a fair trial is possible.  …

65.英國上訴法庭裁定上訴人上訴得直，指：

“27.  In our judgment he was not.  It is of course true that the offences are different, but that is always true in this kind of case; otherwise the second proceedings would be determined by a plea of autrefois convict or autrefois acquit, as the case might be.  Further, it is not sufficient to say, as the judge did, that there was evidence of dangerous driving because it will always be the case that there is evidence in support of the charge in the second set of proceedings.  The drink driving offence contains these ingredients: the Crown must prove that the defendant was driving a motor vehicle on a road or other public place with excess alcohol in his blood, urine or breath.  Thus, if there had been an indictment, the particulars would have alleged that the defendant was driving on the A3 with excess alcohol in his blood.  In the case of dangerous driving, as the indictment shows, the Crown had to prove that the appellant drove his car on the A3 at Malden dangerously.  Both the allegations arose out of the fact that the appellant was driving his car on the A3 at Malden in an unlawful manner.  In the drink driving case the nature of the driving was not relevant to conviction but was relevant to penalty.  Mr Amer does not challenge that proposition.  It is in any event supported by the sentencing guidelines supplied to magistrates which we have seen.  In the dangerous driving case the condition of the appellant, induced by drink, was relevant to both the nature of the driving and in particular, on the facts of this case, to penalty.  It was held in R v Woodward [1995] 2 Cr App Rep 388 that on a prosecution for causing death by dangerous driving, contrary to s 1 of the Road Traffic Act 1988 as substituted, the fact that the driver was adversely affected by alcohol was a relevant circumstance in determining whether he was driving dangerously.”

66.控方大力批評 Wangige 案、 Phipps 案及於該兩件案中被提及的 R v Beedie [1998] QB 356:

「15.  在下段開展案情的分析前，必須留意的是，辯方書面陳詞引用的兩個英國上訴法庭典據，即 R v Wangige [2021] 4 WLR 23 及 R v Phipps [2005] EWCA Crim 33，以及兩者當中引用的上訴法院典據 R v Beedie [1998] QB 356，均沒有援引上述任何一個樞密院案例，各判辭審視案情時，亦沒有引述這些具約束力案例奠定的嚴謹原則。控方陳詞，這些案例既忽略了重要的原則，亦只屬個別案件的事實裁斷，於本案的參考價值非常值得商榷。」

67.這陳詞簡直荒謬:

(1)  於 Wangige 案及 Phipps 案中，上訴法庭明顯不但援引 Connelly 案，更考慮及運用 Connelly 案的原則（見 Wangige 案判詞第 42 至 44 段、 Phipps 案判詞第 10 至 15 段及 Beedie 案第 4 至 7 頁）;

(2)  於 Phipps 案中，上訴法庭指出：

“18.  This can be seen from the decision of this court in Beedie.  …The trial judge, Clarke J, rejected a submission that the proceedings should be stayed as an abuse of process.  He carried out the kind of balancing exercise which is carried out in the ordinary case of an application for a stay where the burden is on the defendant and an important question is whether the defendant can have a fair trial.…

19.  This court held that that approach was wrong and that the judge should have applied propositions 1 and 2 above.  Rose LJ, giving the judgment of the court, said at p 175C:

“In any event, consideration of whether or not the appellant could have a fair trial, which would have been material to an application to stay for abuse of process because of delay, was inappropriate.  A stay on such a ground is an exceptional course (see Attorney-General's Reference (No 1 of 1990) at page 303)  and the onus is on the defence to show that, on the balance of probabilities, no fair trial can be held; whereas the general rule presently under consideration is that there should be a stay, and it is for the prosecution to show that, for special circumstances, there should not be.”

In Beedie it was held that there were no specific circumstances and the appeal was allowed.”

(3)  於 Wangige 案，除了 Connelly 案，英國上訴法庭亦曾考慮 Phipps 及 Beedie 案。上訴法庭引述 Connelly 訂立的原則後指：

“45.  All this was considered and applied in R v Beedie [1998] QB 356…

(4)  於 Beedie 案，英國上訴法庭不但考慮了 Connelly 案，更考慮了 Attorney-General’s Reference No.  1 of 1990 就一般擱置法律程序的原則：

‘Mr.  Smith submitted that the judge, having failed to identify special circumstances, should not have sought to carry out the balancing exercise to which he referred.  The position was quite different from that where an application is made for a stay because the defendant shows that he cannot have a fair trial: Attorney-General's Reference (No.  1 of 1990) [1992] Q.B.  630 [判詞第 6 頁].

Accordingly, the judge's approach being flawed in these two respects, Mr.  Smith submitted that this court should substitute its own exercise of discretion and, there being no special circumstances, the general rule in favour of a stay should prevail [判詞第 6 頁].

In our judgment, Mr.  Smith's submissions in relation to the judge's exercise of discretion are all well founded.  Although the judge carefully and, in our judgment, accurately analysed the effect of the speeches in Connelly ...  First, he failed to consider whether there were special circumstances, and in our judgment there were none.  The public interest in a prosecution for manslaughter and the understandable concerns of the victim's family were, no doubt, good reasons for allowing the prosecution to proceed.  They did not, however, give rise to special circumstances.  … Secondly, he carried out a balancing exercise when this was inappropriate; although it has to be said that prosecuting counsel's submissions appear to have misled him in this respect.  … Fourthly, he took into account, inappropriately, the question of whether there could be a fair trial.  Again it appears that he was not greatly assisted by the submissions of counsel for the Crown.”

(5)  再者，於 Yeung Chun Pong 案中，上訴法庭不但援引，更採納 Phipps 案對「相同或大致相同事實」的解釋（見判詞第 33 至 35 段）。上訴法庭於判詞第 33-34 段指出：

“33.  … This concentration upon the same incident, transaction or event is clear from an appreciation of the principle of double jeopardy and from authority.

34.  In R v Phipps Clarke LJ stated that:

“The authorities do not consider in detail what is meant by the same or substantially the same facts but, in our view, as Lord Pearce makes clear [in Connelly] they essentially mean that the Crown should not be permitted, save in special or exceptional circumstances, to bring a second set of proceedings arising out of the same incident as the first set of proceedings after the first set of proceedings has been concluded.  The principle (which is in essence that identified in the civil law by Wigram CJ in Henderson v Henderson)  is that the Crown should decide at the outset, or at the latest before the conclusion of the first set of proceedings, what charges it wishes to bring arising out of the same incident.  Any other approach is unfairly oppressive to a defendant.  It is for that reason that the burden is on the Crown to identify special or exceptional circumstances to justify such a course.” (Emphasis added)

35.  The reference there to the speech of Lord Pearce in Connelly is to that part which addresses the court’s inherent jurisdiction extending beyond the strict limits of pleas in bar to prevent in criminal proceedings re-litigation of decided matter.  The existence of that power is illustrated by a number of cases cited by his Lordship including …” （強調後加）

(6)  於 Yeung Chun Pong 案，上訴法庭亦引述 Beedie 案為成功運用「免受雙重損害」的例子：

“37.  R v Beedie provides a further example of a case in which the plea of autrefois acquit did not run but a stay was granted because the second prosecution was based on substantially the same facts … The conviction was quashed on appeal because the court was of the opinion that:

A stay should have been ordered because the manslaughter allegation was based on substantially the same facts as the earlier summary prosecutions, and gave rise to a prosecution for an offence of greater gravity, no new facts having occurred …”

(7)  於 Yeung Chun Pong 案，上訴法庭和終審法院均援引英國上議院於 R v Z [2000] 2 AC 483 的判決。上訴法庭指：

“36.  In R v Z, above, Lord Hutton analysed the decision of the House of Lords in DPP v Humphrys and stated that in his opinion:

… the speeches in the House recognised that as a general rule the circumstances in which a prosecution should be stopped by the court are where on the facts the first offence of which the defendant had been convicted or acquitted was founded on the same incident as that on which the alleged second offence is founded.” (The first emphasis is original; the second is added)（強調後加）

(8)  於 Yeung Chun Pong 案，終審法院亦曾考慮英國上議院於 R v Z 的判決：

“Guarding against double jeopardy, vexation and inconsistency

17.  In regard to the power to stay a prosecution that amounts to an abuse of process, we were addressed on our decisions in HKSAR v.  Lee Ming-tee (No.1)  (2001)  4 HKCFAR 133 and HKSAR v.  Lee Ming-tee (No.2) (2003)  6 HKCFAR 336.  On the principles by which protection against double jeopardy is accorded under that power to stay a prosecution, we have been addressed on a number of overseas decisions.  These include those of the House of Lords in Connelly v.  DPP [1964] AC 1254 and R v.  Z …

18.  … in Henderson v Henderson…the obligation on a party to bring forward the whole of his case at the same time.  … in R v Elrington…“ the well-established principle of our criminal law that a series of charges shall not be preferred”.  By “series of charges” he must have meant, as Lord Morris of Borth-y-Gest explained in Connelly’s case …, “charges preferred at different dates”.  Where a number of charges are to be brought and they can be brought together, they ought normally to be brought and pursued at the same time unless there is good reason and justification for doing so at different times.”

(9)  於 Wangige 案、Phipps 案及 Beedie 案中，英國上訴法庭的確沒提及 Humphrys 案，原因顯而易見。如上文所述， Humphrys 案中的論點根本並非「免受雙重損害」的原則。

(10)  於 Yeung Chun Pong 案，上訴法庭亦曾考慮 Humphrys 案：

“In R v Z, above, Lord Hutton analysed the decision of the House of Lords in DPP v Humphrys and stated that in his opinion:

… the speeches in the House recognised that as a general rule the circumstances in which a prosecution should be stopped by the court are where on the facts the first offence of which the defendant had been convicted or acquitted was founded on the same incident as that on which the alleged second offence is founded.” (The first emphasis is original; the second is added)”（強調後加）

(11)  上訴法院於 Yeung Chun Pong 案的判決獲終審法庭的肯定。

(12)  於 R v Z 案中，Lord Hutton 是撰寫主要判詞的法官，而其他法官亦同意該判詞。Lord Hutton 於判詞第 14 頁指：

“My Lords, I consider, with great respect, that in Sambasivam's case it was right to set aside the conviction, and that the proper ground for doing so was for the reason given by Lord Pearce in Connelly … namely, that a man should not be prosecuted a second time where the two offences were in fact founded on one and the same incident …”

(13)  換言之，無論香港的上訴法院或終審法院均確認及採納英國上訴法庭於 Phipps 案中對「相同或大致相同事實」的定義。上級法庭亦認同 Beedie 案的判決。Phipps 案奠定的定義亦與英國的上議院於 R v Z 的判決一致。

68.控方續指：

「16.  控方不爭議，案例確立，法庭就檢控構成濫用法庭程序而運用酌情權擱置法律程序前，需要裁定兩大議題：

(1)  被告人面對第二次審訊，而導致該審訊的事實，與導致首次審訊的事實相同或大致相同（a person faced a second trial arising from the same or substantially the same set of facts as gave rise to an earlier trial），及

(2)  檢控人員未能提出特別或特殊情況以支持進行第二次審訊（the prosecutor could not advance any special or exceptional circumstances to justify the holding of a further trial）。

17. 針對議題（一），辯方書面陳詞勾勒 Wangige 及 Phipps 案的判辭，顯示兩案的上訴法院在肯定法庭行使酌情權擱置第二次檢控時，曾考慮到兩個檢控均源自同一事件（both arose out of the same same incident），甚或將之視為可支持議題一的測試。

18. 控方陳詞，將「源自同一事件」納入為可滿足議題一的測試，恐有過分簡化之嫌，亦與權威案例的原意不符。誠如香港終審法院於 Yeung Chun Pong 案及英國樞密院於 Connelly 案訂明，議題一的關鍵，乃導致兩次審訊的事實是否相同或大致相同，而非單單兩案是否源自時間上同時發生的事件。承上述，Wangige 及 Phipps 案的判辭，忽略了以嚴謹原則為考慮前提，法庭在決定是否將當中的分析套用於本案前，必須更小心謹慎。」

69.如上文所述，英國上訴法庭於Phipps 案對「相同或大致相同」的定義已於 Yeung Chun Pong 案獲香港上訴法庭及香港終審法院的肯定，亦與上議院於R v Z 的判決一致。況且，控方是單憑案例中對該定義的簡述而作出批評，完全漠視案例中的判決：

(1)  於 Wangige 案，英國上訴法庭從沒指出，如兩案的控罪源自同一事件便一定應擱置法律程序。對「相同或大致相同事實」作出定義及運用該定義考慮案情之前，上訴法庭特別指出 Lord Devlin 於 Connelly 案第 1359-1360 頁的說法：

“43.…But a second trial on the same or similar facts is not always and necessarily oppressive, and there may in a particular case be special circumstances which make it just and convenient in that case.  The judge must then, in all the circumstances of the particular case, exercise his discretion as to whether or not he applies the general rule.”

(2)  於 Wangige 案，英國上訴法庭應用 Phipps 案的定義時指：

“62.  In terms of the primary facts nothing had changed between the first charging decision and the subsequent charging decision.  What had changed was that a different expert opinion, making a different analysis of the issue of speed and reaching a different conclusion on the evidence, had been obtained.

65.  … there can be a difference between two charges founded on the same facts and two charges sharing some facts in common.  The present case, however, on analysis, falls into the former category.

(3)  英國上訴法庭顯然並非只憑兩項控罪是否源於同一事件，而是考慮了案件的事發經過及支持兩項控罪的證供才作出判決。

(4)  於 Phipps 案，英國亦以相同手法作出判決：

“24.  The judge held that the prosecution for dangerous driving did not arise out of the same facts as the prosecution based on excess alcohol.  His reasons can be seen from observations which he made in the course of the argument.  Thus he distinguished Beedie in this way at page 4 line 23:

“JUDGE HAWORTH: In Beedie, the breach of the Health and Safety Regulations and the allegation of manslaughter, I think it was, are absolutely the same, whereas in your case there is a distinction: one relates to the driving and one relates to the amount of alcohol in his blood.”

A little later at page 5 line 7:

“MR AMARASINHA: … the facts are the same though.  He was driving -

JUDGE HAWORTH: No, they are not.  The excess alcohol relates to alcohol in his blood.  It does not relate to his manner of driving.”

25. We have already referred to the judge's ruling in which he held that the offences did not arise out of the same facts and added that there was nothing unfair about the decision to prosecute this defendant for dangerous driving because there was evidence that he drove dangerously.

26. We should note that there was indeed evidence that the appellant drove dangerously quite apart from his condition: there was for example evidence of his veering from side to side in the wrong carriageway.  The question is whether the judge was correct to reach the conclusion that he did.

27. In our judgment he was not.  It is of course true that the offences are different, but that is always true in this kind of case; otherwise the second proceedings would be determined by a plea of autrefois convict or autrefois acquit, as the case might be.  Further, it is not sufficient to say, as the judge did, that there was evidence of dangerous driving because it will always be the case that there is evidence in support of the charge in the second set of proceedings.  The drink driving offence contains these ingredients: the Crown must prove that the defendant was driving a motor vehicle on a road or other public place with excess alcohol in his blood, urine or breath.  Thus, if there had been an indictment, the particulars would have alleged that the defendant was driving on the A3 with excess alcohol in his blood.  In the case of dangerous driving, as the indictment shows, the Crown had to prove that the appellant drove his car on the A3 at Malden dangerously.  Both the allegations arose out of the fact that the appellant was driving his car on the A3 at Malden in an unlawful manner.  In the drink driving case the nature of the driving was not relevant to conviction but was relevant to penalty.  Mr Amer does not challenge that proposition.  It is in any event supported by the sentencing guidelines supplied to magistrates which we have seen.  In the dangerous driving case the condition of the appellant, induced by drink, was relevant to both the nature of the driving and in particular, on the facts of this case, to penalty.  It was held in R v Woodward [1995] 2 Cr App Rep 388 that on a prosecution for causing death by dangerous driving, contrary to s 1 of the Road Traffic Act 1988 as substituted, the fact that the driver was adversely affected by alcohol was a relevant circumstance in determining whether he was driving dangerously.

28. We should, however, note that we recognise that on the facts of this case, as we have already indicated, there was other independent evidence that the defendant was driving dangerously.

29. In all these circumstances it seems to us that both these prosecutions and the allegations in them arose out of the same or substantially the same facts, namely driving the appellant's car on the A3 at Malden.  They both arose out of the same incident, in much the same way as in Beedie both prosecutions arose out of the death of the victim caused by CO2 poisoning.  Here the charges are different; so were they in Beedie, where the prosecution authority, under s 3 of the Health and Safety at Work Act 1974, simply had to prove that there was a breach of the duty in s 3(2)  of that Act, which provides that:

“it shall be the duty of a self-employed person to conduct his undertaking in such a way as to ensure, so far as is reasonably practical, that he and other persons, not being his employees, who may be affected thereby, are not thereby exposed to risk to their health or safety”,

whereas in order to prove manslaughter the Crown had to prove that the death was caused by the appellant's gross negligence.

30. Mr Amer correctly conceded in argument that there was at the very least a substantial overlap between the facts of the two cases.  Indeed – also in our view correctly – he conceded that a rational prosecutor would have considered at the outset what charges to bring arising out of the incident on the A3 that day.  He submitted that it may be that in a busy prosecutor's office that consideration may have been overlooked.  That may be so, but it appears to us that in a standard case of this kind there should be no difficulty for prosecutors considering at the outset what charges they wish to advance arising out of any particular incident.

31. In all these circumstances we conclude that the second proceedings arose out of the same or substantially the same facts as the earlier proceedings in the sense which we have indicated.…

70.控方力陳：

「19.  邏輯上，一宗事件的發生引申出多於一宗檢控，不代表兩宗檢控必然就基於相同或大致相同的事實。反之，正如 Director of Public Prosecutions v Alexander 案 [2011] 1 WLR 653…的案情展示，被告人用車輛接載被非法禁錮的乘客，就同一個車程，控方分別就非法禁錮及「不小心駕駛」（driving without due care and attention），向被告人作出警告及其後提出告發。及至案件上訴，上訴法庭否定下級法院以「源自同一事件」為測試標準，並視之為過分簡化了Connelly案的原則。」

71.控方援引 Alexander 案判詞的第 21 及 22 段後指：

「21.  控方邀請法庭，拒絕單憑該傳票及危駕控罪關乎同一宗意外，便裁定兩者導致審訊的事實相同或大致相同。控方陳詞，法庭在考慮議題（一）時，應考慮所有相關的事實及情況。」

72.於 Alexander 案，控方指被告人接載一名女子，沿途違反一名女子的意願，拒絕停車及讓該女子下車。當時，該女子的男朋友正駕駛另一輛汽車追著被告人的汽車。男朋友和被告人的汽車最終發生碰撞。警方向被告人作出就「非法禁錮」的正式警告（formal caution）。後來，警方控告被告人「不小心駕駛」，並指被告人的駕駛方式引致兩車的碰撞。原審法庭裁定被告人的犯罪行為已經以「正式警告」處理，因此被告人可依賴「一罪兩審」及濫用程序的原則。控方不服判決，提出案件陳述（case stated）。

73.首先，Alexander 案的案件陳述中提出的問題是：

“The justices accepted the submissions made on behalf of the defendant.  They held that he could rely on the defence of autrefois convict, and in addition they held that it was an abuse of process to proceed with the prosecution, but they stated the following questions for the opinion of this court:

“(1)  Were we wrong in law in finding that the principle of autrefois convict applied to an offence of driving without due care and attention on the basis that it arose from the same set of circumstances as an offence of false imprisonment?

“(2)  Were we wrong in law in finding that the principle of autrefois convict applied on the basis that the defendant had received a police caution for the offence of false imprisonment?

“(3)  Were we wrong in law to find that the prosecution for driving without due care and attention was inappropriate and amounted to an abuse of process sufficient to dismiss the information?”

74.Alexander 案內三位法官對該案論點的結論並不一致。因控方案件提述的用語，兩位大比數法官（Stanley Burnton 法官及 Treacy 法官）認為 Alexander 案涉及「一罪兩審」及 濫用程序的原則，而他們均裁定原審法官就上述 3 個論點均出錯。

75.其中一位大比數法官 （Stanley Burnton 法官）指：

“6.  Before us it is common ground that the defence of autrefois convict, or indeed autrefois acquit, has no application where what has occurred is a caution.  A caution is not a conviction for the purposes of those defences, notwithstanding that a caution will only be administered if the accused person admits his guilt.  The principles of autrefois convict and autrefois acquit are applicable only where there has been a finding by a court of guilt or innocence.  They have no application to an extrajudicial procedure, such as the administration of a simple caution.

7.  The issue that remains, therefore, is whether this prosecution for driving without due care and attention was and remains an abuse of the process of the court.  …

9.  … it is clear and common ground that a caution is not a conviction for the purposes of the defence of autrefois acquit, or for that matter autrefois acquit.  Where, however, criminal conduct has been the subject of an agreed caution, in the absence of good reason for it to be the subject of a subsequent prosecution, such a prosecution will generally constitute an abuse of the process of the court.  Information or evidence obtained subsequent to caution, such as details of injury to a victim significantly exceeding what had previously been known would generally constitute a good reason …

10.  In the present case, however, there were important differences between the offence that was the subject of the caution and the offence subsequently prosecuted.  The conduct of the defendant was different: in the one case, detention of Tara Baker; in the latter, the manner of his driving.  Thus the offences were totally different.  So were the facts necessary to establish guilt.  In the case of the detention of Tara Baker, all that was necessary was that she had been detained during the journey against her will.  In the case of the driving without due care and attention, while the presence of Tara Baker against her will in the car might be an explanation for careless driving, it was not a necessary part of the offence.  What was necessary to prove was that the defendant had driven without due care and attention.

11.  The modes of trial prescribed are different: in the case of false imprisonment, on indictment; in the case of the offence prosecuted, that is to say driving without due care and attention, summary trial of an offence that cannot be tried by itself on indictment.  It may be that if section 51(1)  of the Crime and Disorder Act 1998 is still in force, the two offences could have been tried together in the Crown Court, but the fact remains that they are very different offences, and the limitations in subsection (11)  on the trial of offences triable summarily only and triable on indictment only together themselves indicate that, in certain circumstances, there will have to be separate trials before different courts of offences arising out of the same broad incident or series of incidents.

12.  Moreover, there were different victims in these cases.  In the offence subject to the caution, the victim and the only victim was Tara Baker; in the case of the driving offence, in addition to Tara Baker, Ben Collins and members of the public were liable to be endangered by the defendant’s driving, if indeed it was careless.  The sanctions applicable on conviction differ in important respects.  The imposition of points on a driving licence and disqualification are not available on conviction for false imprisonment.  Careless driving is punishable only by a fine.  A conviction for false imprisonment may lead to imprisonment.

13.  These differences lead me to conclude that a plea of autrefois convict could not have been maintained if there had been a conviction for false imprisonment: see Connelly ...  If so, it seems to me a fortiori the defence of abuse of process in a case such as this cannot be maintained.

14.  It is not suggested an express promise was made by the police that there would be no prosecution arising out of the defendant’s driving, nor is it suggested that he inquired as to the possibility of his being prosecuted for a driving offence.  In my judgment, there was no implied assurance given by the police on the facts of this case.

15.  This case differs in important respects from that considered in R v Phipps …

16.  In my judgment, therefore, the justices erred as a matter of law in upholding the plea of abuse of process.  I would answer all the questions posed by them in the case stated in the affirmative.  ” （強調後加）

76.本案控方援引的是另一位大比數法官 （Treacy 法官）就首個問題的裁決。 為求全面，本席引述 Treacy 法官就所有議題的判決：

“21.  Question (1): were the justices wrong to find that autrefois convict applies to a charge of careless driving on the basis that it arose from the same set of circumstances as the offence of false imprisonment? In my judgment, the answer to that question is “yes”.  The doctrine of autrefois convict or acquit was extensively considered by the House of Lords in Connelly ...  Lord Morris of Borth-y-Gest distilled nine governing principles which are set out at pp 1305–1306.  The facts of this case show that (a)  there has been no previous conviction or acquittal by a competent court, (b)  the facts necessary to prove false imprisonment are distinct from those necessary to prove careless driving, (c)  there is no common ground between the ingredients of two offences, and (d)  the fact that there may be witnesses common to both offences describing the incident as a whole is not a bar.

22.  In my judgment, the justices fell into error in their treatment of these two matters, ie the false imprisonment and the careless driving, as arising from the same set of circumstances without proper analysis of the principles enunciated by Lord Morris, which would inevitably have led them to a different conclusion.

23.  Question (2): were the justices wrong in law in finding that autrefois convict applied on the basis that the defendant had been cautioned for false imprisonment? I answer this question “yes”.  As Lord Morris’s governing principles demonstrate, the doctrine requires a prior appearance before a competent court.  A caution by a police officer is very different.  It is, as para 2 of Home Office Circular 016/2008 states, “a non-statutory disposal for adult offenders”.…

24. Question (3): were the justices wrong to find that a prosecution for careless driving was an abuse of process sufficient to dismiss the information? This is the key question posed.  The question is whether it would be fair for the defendant to be tried for careless driving.  It is clear from the Connelly case that the approach to autrefois convict or acquit arguments must be one of giving the doctrine limited scope.  A similarly restrictive approach is to be taken with abuse applications: see for example R v Horseferry Road Magistrates’ Court, Ex parte Bennett [1994] 1 AC 42, 63H …

25.  In my judgment, there was no unfairness or manipulation of court procedures in issuing proceedings for careless driving after cautioning for false imprisonment.

26.  I identify the following matters.  (a)  There was no suggestion that, in administering the caution, any promise was made to the defendant that he would not be prosecuted for any other offences … Indeed, the cautioning process explicitly sets out the consequences of accepting a caution as set out earlier in this judgment.

27.  (b)  The legal ingredients necessary to prove the two offences are totally different.  There is unlikely to be any significant or material factual overlap.

28.  (c)  The charge of careless driving does not focus on an individual victim, unlike false imprisonment.  It looks to the wider public and has available endorsement and disqualification penalties, which themselves may justify separate proceedings …

29.  (d)  There is no evidence that the defendant has acted to his detriment as a result of being cautioned, or that he would be materially disadvantaged vis-à-vis the careless driving charge.  The summons for careless driving was issued in good time, and the notice of intended prosecution procedure under section 1 of the Road Traffic Offenders Act 1988, as substituted by section 48 of and paragraph 80 of Schedule 4 to the Road Traffic Act 1991, requiring notice within 14 days of the offence is deemed to have been complied with by virtue of section 1(3).

30.  (e)  On a trial before the justices for careless driving, the court would retain the ability to exclude evidence of the caution if it considered that it was irrelevant to the issues before the court, or if it concluded that it would be unfair to admit the evidence pursuant to section 78 of the Police and Criminal Evidence Act 1984.

31.  (f)  I do not consider that the position in this case is analogous to that in R v Phipps [2005] EWCA Crim 33 or R v Forest of Dean Justices, Ex p Farley [1990] RTR 228, where successive prosecutions were brought on closely related subject matter.

32.  (g)  It is to be noted that the case stated does not appear to consider the principles of abuse of process in any detail.  It reads:

“We are of the opinion that: the police caution for false imprisonment and the summons for driving without due care and attention arose from the same circumstances; the [defendant] should not be punished twice for an offence arising out of the same or substantially the same facts; that to do so did offend against the established principles of autrefois convict and of double jeopardy.  Accordingly we dismissed the information on the basis of autrefois convict and double jeopardy.”

33.  The justices appear to have equated abuse of process with autrefois convict by describing the prosecution as “inappropriate” in the third question framed, and found grounds for dismissing the information on that basis.  None of the reasons given in the case for the justices’ decision gives a sufficient basis for a finding of an abuse, for the reasons set out earlier in this judgment.

34.  In any event, I do not consider that any of the circumstances that could enable the court to intervene to stay or stop the criminal process was demonstrated in this case.

35.  Accordingly, I hold that the justices were wrong to dismiss the information, and answer the third question posed in the affirmative.  I would allow this appeal and require the justices to proceed to try the information.”（強調後加）

77.因此，Alexander 案內的提述並非「免受雙重損害」。控方指於該案中，上訴法庭否定下級法院以「源自同一事件」為測試標準，並視之為過分簡化了 Connelly 案的原則。這完全是扭曲法庭的判詞。該案的論點是「一罪兩審」。上訴法院指出「源自相同或大致相同事實」並非「一罪兩審」的測試。「原自相同或大致相同事實」的測試只適用於「免受雙重損害」原則。可是檢控時，控方須證明的元素與警告完全不同。因此，無論將「一罪兩審」或「免受雙重損害」的測試應用於案情， Treacy 法官仍然認為沒有任何原因擱置或停止該案的法律程序。他亦裁定原審法庭就該案的三個論點的判決出錯。

78.如上訴法庭於 Yeung Chun Pong 案中指出，「一罪兩審」與「免受雙重損害」的測試完全不同。除了法庭覆述案情的段落外，本席基本上已覆述了 Alexander 案中兩位大比數法官的整個裁決。事實上，該案中沒有任何一位法官裁定下級法院「過份簡化」Connelly 案的原則。他們均指下級法院就「一罪兩判」運用了不適當的測試。再者，該案中的大比數法官亦從沒考慮「相同或大致相同事實」的定義。控方的陳詞完全是混淆視聽。

79.同一原則，應用於不同的情況會有不同的結果。誠如終審法庭於 Yeung Chun Pong 案指出：

‘19.  …the application of the rule in each case must depends on its own facts”

80.如上文所述，英國上訴法庭於 Phipps 案對「相同或大致相同」的定義已於Yeung Chun Pong 案獲香港上訴法庭及香港終審法院的肯定，亦與上議院於 R v Z 的判決一致。本席亦會採納上訴法庭於 Yeung Chun Pong 案內的定義（亦即 Phipps 案的定義）。本席現階段須考慮及決定的是適用的法律原則，再將適用的原則應用於本案的有關事實及情況。絕不會單憑本案兩次檢控的控罪源自同一事件裁定兩項控罪的「事實相同或大致相同」。

81.控方亦援引 R v Hamer [2023] EWCA Crim 516，指：

「20.  具一個更鮮明的例子，一位身負法庭禁令不得攜帶刀具的被告人，如攜帶利刃外出，則同時干犯了違反法庭命令及公安罪行，儘管源自於被告人同一個行為，牽涉的，乃法律上不同的罪行。參見 R v Hamer 案 [2023] EWCA Crim 516…的分析：

“14.  The question we have to determine is whether the events in this appellant's case fall within the category of being unjust, oppressive and duplicitous, or whether the two offences, although founded on the same course of conduct, are so legally distinct that they can both properly be pursued by the prosecution.  In our view, the latter is the correct view for a number of reasons.

15.  First, although the two charges arose from the same actions by the appellant, the two offences are legally distinct.  The first is a substantive criminal act; the second, a breach of a previous court order.  It is apparent that the two offences have similarities but also a number of differences.  The terms of the defences are different; the defences have different burdens of proof…and there are specified factual exclusions found in one that are not within the other.  It follows that while it is entirely possible to act in a way so as to commit both offences simultaneously, as the appellant in this case has demonstrated, there are also courses of conduct that would commit one but not both offences （強調後加）」

82.控方簡直是胡說八道：

(1)  於 Hamer 案中，法庭在 2021 年 12 月 7 日頒下命令，禁止上訴人攜帶刀具外出。2022 年 4 月 25 日，閉路電視片段顯示上訴人於街上管有刀具，並將其交予一名 14 歲男童。於是，上訴人同一時間被控以違反法庭命令（控罪 2）及公安罪行（控罪 1）。2022 年 6 月 16 日，上訴人於法庭承認違反法庭命令。可是上訴人指公安罪行源自同一事件，他承認違反法庭命令後，事件已解決。法庭駁回上訴人的說法後上訴人便承認公安罪行。後來，上訴人要求撤銷公安罪行的認罪。法庭裁定兩項控罪完全獨立；因此沒有理由撤銷公安罪行的認罪。2022 年 9 月 8 日，就公安罪行，上訴人被判處 15 個月監禁，而就違反法庭命令被判處 6 個月監禁，兩項控罪同期執行。上訴人不服控罪 1 的定罪，提出上訴。英國上訴法庭指，上訴的論點為：

“1.  This appeal considers when the courts should permit the prosecution of a defendant for two charges founded on a single piece of conduct …

3.  The appellant was charged with two offences: first, having an article with a blade or point…; and second, breach of a Knife Crime Prevention Order…

6.  …the appellant appeared at the Crown Court…It was argued on his behalf that a guilty plea to count 2 (the breach of the order)  should resolve the case as the further count added nothing and was founded on the same conduct…

8.  …sentenced the appellant to 15 months' imprisonment on count 1 (possession of a bladed article)  and six months' imprisonment on count 2 (the breach of the KCPO)…There is no appeal against the sentence passed, save to the extent that it is argued on the appellant's behalf that he should have been sentenced for only one or other of the offences.

10.  On behalf of the appellant it is submitted that his case falls within a line of authority whereby the appellate courts have held that a defendant should not stand to be convicted of two alternative offences.  In R (Dyer)  v Watford Magistrates Court [2013] EWHC 547 (Admin), the court held that the appellant should not have been convicted of both racially aggravated causing fear or provocation of violence and of causing fear or provocation of violence, wherein both convictions were founded on the same conduct.  In the course of his judgment, Laws LJ said:

“This claimant stands convicted twice for a single wrong.  That is unfair and disproportionate.  It is not a matter of being punished twice.  The double conviction is of itself unfair.  It must be basic to our system of criminal justice that a person's criminal record should reflect what he has done, no more and no less.  That is fair and proportionate.  To convict him twice for a single wrong offends this basic rule.”

11.  The appellant also relies on other authorities to similar effect, including R v McEvilly [2008] EWCA Crim 1162 and R v Ismail [2019] EWCA Crim 290.  In McEvilly the defendant was indicted for the same act with attempted murder, wounding with intent to do grievous bodily harm and unlawful wounding.  He pleaded guilty to the last offence and, that plea not being acceptable to the prosecution, was then tried on the first two counts.  The jury convicted him of wounding with intent and then, after a short delay, also of attempted murder.  The Court of Appeal vacated the guilty plea and quashed the lesser conviction.  In Ismail the defendant pleaded guilty to counts of possession of a firearm and ammunition with intent to endanger life, and also to counts of simple possession of the same firearm and ammunition.  The Court of Appeal presided over by my Lord, the Lord Chief Justice, quashed the sentences imposed on those latter simple possession counts and instead ordered those counts to lie on the file on the usual terms.

12.  The respondent accepts the principle articulated on the Appellant's behalf, but argues that it has no application to the facts of his case…the appellant's conduct had two distinct and separate aspects: the substantive offence and the breach of the earlier court order…

13.  The courts' refusal to permit an accused to be convicted twice for the same offence is long established.  In Connelly … Lord Morris, delivering the main speech, traced the concepts of autrefois acquit and convict back to the late eighteenth century.  As their Lordships made clear in Connelly, those concepts applied only to two prosecutions for an identical offence, but the House went on to identify a broader principle whereby the criminal courts have the power to prevent a prosecution for the same conduct where such a course would be unjust or oppressive.

14.  The question we have to determine is whether the events in this appellant's case fall within the category of being unjust, oppressive and duplicitous, or whether the two offences, although founded on the same course of conduct, are so legally distinct that they can both properly be pursued by the prosecution…

(2)  顯而易見，Hamer 案中的上訴人是同時被控兩項源自同一事件的控罪；控方並非分兩次作出檢控。從案中雙方的爭論可見，上訴人的論點是兩項控罪重疊（duplicitous)  而令到檢控不公或具壓迫性。這從來並非本案辯方的說法；辯方更同意，如控方於首次檢控被告人時同時控以本案控罪，辯方根本沒有任何投訴的空間。該案的情況與本案完全不同。

法庭就「免受雙重損害」而擱置法律程序的權力性質

83.不受爭議的是，如第二次檢控違反「免受雙重損害」原則，除非控方證實有特別或極特殊的原因，法庭有酌情權擱置第二次的法律程序。可是，辯方指：

「19.  除濫用程序外，終審法院隨後亦在 HKSAR v Fu Man Kit (2021)  24 HKCFAR 253…一案中釐清了法庭分別在普通法及《香港人權法案》第 11(6)  款，就禁止一罪兩審 （“the rule against double jeopardy”）而擱置法律程序的權力。香港人權法案列於《香港人權法案》條例（第 383 章）第 8 條內，其中第 11(6)  款指，「任何人依香港法律及刑事程序經終局判決判定有罪或無罪開釋者，不得就同一罪名再與審判或科刑」。

84.辯方援引 Fu Man Kit 案第 17 至 19 段、第 45、97 至 100 段，指：

「46.  從 Fu Man Kit…一案可見，《香港人權法案》第 11(6)  款適用於當被告早前已被一個行使司法管轄權的法庭裁定一項刑事罪行有罪或無罪，而後來的控罪涉及就相同或大致相同的事實重新檢控該人，以致支持法庭行使普通法下的酌情權，以構成濫用程序為由而擱置法律程序。當《香港人權法案》第11(6)款適用時，對重覆審訊或懲罰的禁止不屬酌情性質。

47.  基於以上所述，本案的控罪與先前審訊的控罪是相同的。因此，辯方謹陳詞《香港人權法案》第 11(6)  款適用於本案，所以法庭對重覆審訊或懲罰的禁止不屬酌情性質。當人權法案遭違反時，法庭必須根據《香港人權法案條例》第 6 條作出補救，即頒發它有權在該等訴訟中頒發而認為在該情況下屬適當及公正的補救、濟助或命令。就本案而言，法庭唯一且必然的補救方法使命令永久擱置法律程序。」

85.控方援引 Fu Man Kit 案第 100 段，指於違反「免受雙重損害」原則的案件中，法庭擱置程序的權力只屬酌情權。控方亦強調上訴法庭於 Yeung Chun Pong 案判詞第 71-78 段、HKSAR v Lee Ming Tee & Another (2001)  4 HKCFAR 133 及 Humphrys 案的「嚴謹原則」，指：

「6.  被告人於其書面陳詞一再提及，法庭對重複審訊或懲罰的禁止，因觸碰到《香港人權法案》第 11(6)  款，「不屬酌情性質」

7. 為免混淆視聽，終審法院在 符文傑 案清楚闡明，《人權法案》第 11(6)  款適用的前設，乃案件的情況，必須先符合行使普通法「免受雙重傷害」原則下的酌情權的情況：-

8. 歸根究底，法庭終止審訊的權力，乃屬於酌情性質。權威案例確立，此等酌情權，非在極特殊情況下，不能輕易作出。⋯」

86.於 Fu Man Kit 案中，X 被羈押在荔枝角收押所（該監獄）期間襲擊另一名囚犯（V）。X 被監獄當局控以違反《監獄規則》（第 234 章，附屬法例 A）第 61(x)  條規則，其規定囚犯如與任何人打鬥，即屬干犯違反監獄紀律的行為。紀律聆訊在該監獄的處理監督席前進行。X 認罪，而處理監督下令懲罰 X，包括取消減刑（紀律聆訊）。因應 V 的要求，上述事件亦有報警。X 獲釋後，就襲擊 V 一事被控以「襲擊造成身體傷害」罪，控方亦開展相關法律程序。X 申請擱置該法律程序，理由為該法律程序違反「一罪兩審」原則，故屬濫用程序。裁判官拒絕擱置該法律程序，且基本上裁定相關的「一罪兩審」法則只適用於「具有司法管轄權的法庭」席前的早前法律程序，而這不包括紀律聆訊。X 其後被判罪名成立。他不服定罪，提出上訴，但被駁回。上訴委員會就以下法律問題批予 X 上訴許可：「根據《監獄規則》進行且涉及取消減刑懲罰的紀律聆訊是否屬於由具有司法管轄權的機構進行的『刑事法律程序』，以致『禁止一罪兩審』原則適用？」。X 提出的辯據包括：(i)  Engel v The Netherlands (No.  1)  (1976)  1 EHRR 646 一案所定立的準則將「刑事」的涵義擴大（以致紀律聆訊有時可被包括在內），並曾在香港運用以決定《香港人權法案》第 11(1)  及 11(2)  款下的公平聆訊保障是否適用，而該準則亦應運用以決定《香港人權法案》第11(6)  款下禁止一罪兩審的憲法保障是否適用於涉案法律程序；(ii)  《香港人權法案》第 11(6) 款適用於從相同或大致相同的事實引起的審訊；及 (iii)  無論如何，X 落在普通法下「禁止一罪兩審」規則的適用範圍，而裁判官錯誤地不行使其酌情權擱置涉案法律程序。

87.於該案中，李義法官及林文瀚法官首先解釋 「一罪兩審」（autrefois acquit and autrefois convict）和「免受雙重損害」（the rule against double jeopardy)：

“B.  Double jeopardy at common law

B.1 Autrefois acquit and autrefois convict

15.  It is well-established that the court has an inherent power to protect its process from being abused.  In its criminal jurisdiction, one such abuse which the court guards against is the repetition of charges against an individual after his or her acquittal or even after a conviction which was not followed by a punishment severe enough to satisfy the prosecutor.  As Lord Pearce explained:

It was, no doubt, to meet those two abuses of criminal procedure that the court from its inherent power evolved the pleas of autrefois acquit and autrefois convict.  For obvious convenience these were pleas in bar and, as such, fell to be decided before the evidence in the second case was known.  They thus tended to look to form rather than to the substance that lay behind it.  Where either of these pleas was made out, the defendant was entitled to an acquittal as of right, and no question of discretion or abuse or injustice could arise.

16.  Thus, the focus of the autrefois pleas is on the elements which in law constitute the offences in question and not on the facts or conduct of the accused.  Those pleas are only available “in the narrowly defined situation where the elements of the second offence are the same as or included in the original offence”.  The appellant rightly accepts that the autrefois doctrine does not avail him in the present case.

B.2 Discretionary stay on grounds of double jeopardy

17.  He does rely, however, on the second aspect of double jeopardy at common law which involves the discretionary power of the court, acting in its inherent jurisdiction, to stay proceedings which constitute an abuse of its process.  As Bokhary PJ pointed out in Yeung Chun Pong v Secretary for Justice:

There is a discretionary power to stay a prosecution as an abuse of process where (i)  a person faces a second trial arising from the same or substantially the same set of facts as gave rise to an earlier trial (whether in the same jurisdiction or in a competent court in another jurisdiction)  and (ii)  the prosecutor cannot advance any special or exceptional circumstances to justify the holding of a further trial.

18.  Or as it was put in Ubamaka:

…the Court has power to stay proceedings as an abuse of process if the subsequent charge involves an attempt to re-prosecute a person previously convicted or acquitted on the same or substantially the same facts.

19.  As the power to order a stay is discretionary, it is generally exercised where pursuit of the second set of proceedings would be vexatious, oppressive, unfair, for an improper or ulterior motive or otherwise similarly objectionable.”（強調後加）

88.終審法院就「一罪兩審」（autrefois）和「免受雙重損害」（rule against double jeopardy）的解釋清晰、精簡、易明：

(1)  「一罪兩審」與「免受雙重損害」兩個原則有別；法庭的權力亦有異；

(2)  「一罪兩審」是指第二次檢控的控罪元素與第一次檢控的控罪元素一樣，或第二次檢控的控罪元素已包括在第一次檢控的控罪元素；

(3)  「一罪兩審」適用的範圍極狹窄；法庭只需考慮控罪的元素；

(4)  如辯方成功確立第二次檢控屬「一罪兩審」，被告人有權獲判無罪；法庭並無酌情權，亦無需考慮有否濫用程序或不公的情況；

(5)  「免受雙重損害」意指控方作出第二次檢控，而該檢控是基於與首次檢控「相同或大致相同」的事實，而控方無法提出特別或極特殊的情況為何作第二次檢控；

(6)  「免受雙重損害」則屬濫用程序、惡意（vexatious）、壓迫（oppressive）、不公（unfair）、不當（for an improper purpose or ulterior motive）或令人反感（similarly objectionable）；

(7)  如辯方成功確立第二次檢控違反「免受雙重損害」的原則，控方亦無法提出特別或極特殊的情況，普通法下，法庭有酌情權擱置該程序。

《香港人權法案》第11(6) 款的性質

89.於 Fu Man Kit 案，終審法院考慮了《香港人權法案》第 11(6)  款的性質及裁定：

“43.  BOR 11(1)  and 11(2)(a)  to (g)  implement ICCPR 14.2 and 14.3(a)  to (g)  which are materially in the same terms.  They lay down minimum guarantees of a procedural character to be adopted “[in] the determination of any criminal charge against” any person, consisting of the right to be presumed innocent; to be informed of the charge; to have the opportunity to prepare one’s defence; to be tried without undue delay; to be present and to have legal assistance at the trial; to question and have access to witnesses; to have an interpreter if needed; and not to be compelled to testify against oneself or to confess guilt.

44.  Those rights or privileges flesh out some of the procedural aspects of the guarantee of a fair hearing laid down by BOR 10 (reflecting ICCPR 14.1)  which relevantly states:

In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

45.      It is centrally important to note that the nature and purpose of, and protection afforded by, BOR 11(6) are qualitatively different from those of BOR 11(1)  and 11(2).  BOR 11(6)  is substantive and not procedural.  It is not concerned with prescribing fair procedures designed to achieve a fair hearing.  It lays down a substantive rule that bars the trial or punishment of any person for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of Hong Kong.  It thus prohibits any impugned hearing from taking place at all.

46.  The essential difference between the aforesaid substantive and procedural provisions is recognised in General Comment No 32 on ICCPR 14 (“GC 32”)  which materially states as follows:

Article 14 is of a particularly complex nature, combining various guarantees with different scopes of application.  ...  Paragraphs 2 - 5 of the article contain procedural guarantees available to persons charged with a criminal offence.  ...  Paragraph 7 prohibits double jeopardy and thus guarantees a substantive freedom, namely the right to remain free from being tried or punished again for an offence for which an individual has already been finally convicted or acquitted.”

《香港人權法案》第11 款何時適用

90.於同一案中，終審法院亦指出《香港人權法案》第 11(6)  款何時適用：

“C.2 When BOR guarantees are engaged and the consequences

47.  …BOR 11(6)  applies where the relevant person is potentially to be “tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of Hong Kong”.…

C.8 The scope of BOR 11(6)

94.  …what are the appropriate criteria for determining when BOR 11(6)  is engaged? The answer depends on the true interpretation of its provisions.  As we have seen, it provides as follows:

No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of Hong Kong.

95.  It clearly denotes consecutive criminal proceedings involving the same offence.  Thus, it deals with the happening “again” of the occurrence of someone having been “tried or punished” for an “offence” for which he or she has already been “finally convicted or acquitted” in accordance with “the law and penal procedure of Hong Kong”, the words in quotation marks appropriately being understood to refer to criminal proceedings in the strict sense…

97.  It follows that on its true interpretation, BOR 11(6)  only applies where a person has “already been finally convicted or acquitted in accordance with the law and penal procedure of Hong Kong” of a criminal offence in the strict sense by a court exercising criminal jurisdiction.  BOR 11(6)  prohibits that person from being tried or punished again for a like offence.

98.  An issue that arises concerns the required degree of overlap between the two criminal offences in question.  When BOR 11(6)  prohibits trial and punishment “again for an offence for which he has already been finally convicted or acquitted”, to what extent must the offence which is the subject-matter of the second trial or punishment be the same as the offence previously dealt with?

99.  In our view, BOR 11(6)  plainly covers cases which would come within the autrefois acquit and autrefois convict rules, in other words, where the elements of the second offence are the same as or included in the original offence.  It is also our view that it applies in cases which would qualify for exercise of the common law discretion to stay proceedings which constitute an abuse of the court’s process where the subsequent charge involves re‑prosecuting a person previously convicted or acquitted on the same or substantially the same facts.

100.  BOR 11(6)  therefore largely reflects the position at common law.  However, whereas at common law, the stay in cases involving the same or substantially the same facts is discretionary, where the BOR 11(6) is engaged, the prohibition against repeating the trial or punishment is not a matter of discretion.（強調後加）

91.終審法庭於 Fu Man Kit 案的判決十分清晰。《香港人權法案》第 11(6)  款只適用於下述情況，即某人就一項嚴格意義上的刑事罪行被一個行使刑事司法管轄權的法庭「依香港法律及刑事程序經終局判定有罪或無罪開釋」。《香港人權法案》第 11(6)  款亦適用於某人早前已被一個行使司法管轄權的法庭裁定一項刑事罪行有罪或無罪，而後來的控罪涉及就相同或大致相同的事實重新檢控該人，以致支持法庭行使普通法下的酌情權，以構成濫用程序為由而擱置法律程序。與普通法下的情況不同，當《香港人權法案》第 11(6) 適用時，對重複審訊或懲罰的禁止不屬酌情權（…whereas at common law, the stay in cases involving the same or substantially the same facts is discretionary, where the BOR 11(6)  is engaged the prohibition against repeating the trial or punishment is not a matter of discretion）。

92.換言之，當《香港人權法案》第 11(6)  款適用時， 法庭的權力不屬酌情。控方的陳述完全漠視終審法院的判決。

「特別或特殊情況」

93.就新的專家意見可否構成「特別或特殊情況」（special or exceptional circumstances to justify the holding of a further trial） ，辯方援引 Wangige 案，指：

「26.  英國上訴法庭指，新增的危險駕駛引致他人死亡罪與之前於裁判法院處理的 4 項罪名是基本相同的主要事實（primary facts）和出於同一事件（arose out of the same incident），主要事實從沒有任何變化。分別之處只是獲得了不同的專家意見，對速度問題進行了不同的分析，並根據相同的證據作出了不同的意見。新專家報告所參考的證據在檢控處考慮首次檢控時已經存在，即基於相同事實已改變指控立場，令被告面臨第二次起訴是不公平和具壓迫性的」（判詞第 62 至 71 段）

94.控方則指：

「22.  Alexander 案兩位持大比數意見的法官，在裁定「不小心駕駛」檢控並不構成濫用程序、故不應被法庭擱置時，提出以下論點：-

…

(6)  控方於第一次檢控後才獲得新資訊或證據，一般可視為支持進行第二次檢控的良好理由…

32. 其實，即使於辯方援引的 Wangige 案…, 上訴法庭雖然推翻了第二次檢控的定罪，其判辭亦清楚指出，控方就同一案件獲得進一步專家證據，有可能構成特別情況以支持第二次檢控。每件案件必須按照其獨特案情考慮，不能搬字過紙，一概而論；參見判辭第 81 段」。

95.於 Wangige 案，英國上訴法庭指：

“62.  In terms of the primary facts nothing had changed between the first charging decision and the subsequent charging decision.  What had changed was that a different expert opinion, making a different analysis of the issue of speed and reaching a different conclusion on the evidence, had been obtained.

63.  Moreover, in our judgment the substance of the four charges in the magistrates’ court cannot be divorced from the substance of the charge of causing death by dangerous driving.  It is true that essential ingredients of the latter charge are the manner of driving and the causation of death: which are not necessarily ingredients of the first four charges.  But the reality, in our view, is that there would have been no prosecution of either kind had there not been unlawful driving and the collision.  As it was put in R v Phipps, all arose out of “the same incident”.

64.  Accordingly the argument of Mr McGuinness that the second prosecution wholly differed from the first in that (unlike the first prosecution)  it focused on the manner of the driving cannot be upheld.  First, it adopts an approach comparable to that taken by the Crown Court judge in R v Phipps in focusing narrowly on the ingredients of the respective charges.  But that narrow approach was explicitly rejected by the Court of Appeal, which decided that a more holistic approach, by reference to all the circumstances, was required in assessing whether the charges arose out of the same incident.  Second, it fails sufficiently to acknowledge that there were in any event factors materially relevant to both sets of proceedings which were common to such proceedings: as the points made by the prosecution in the magistrates’ court and the points made by the prosecution in the Crown Court show.  Thus in the magistrates’ court, the fact of death being caused was (properly)  put forward as relevant to sentence: and indeed the Victim Personal statements were, in their way, also directed to that issue.  Correspondingly, in the Crown Court counsel for the prosecution had (properly)  put forward both the defective state of the vehicle, in particular as to tyres and windscreen wipers, which the defendant was to be taken as having known, and also the defendant’s subsequent conduct in driving on after the collision without stopping and with a shattered windscreen, as contributing factors or supporting evidence towards the allegation of dangerous driving causative of death and towards any sentence.  Although Mr McGuinness sought to downplay those points as speculative, they were points which were open to be made and which were made: as the judge rightly acknowledged.  Yet further, as pointed out by Lavender J in the course of argument, the third and fourth charges in the magistrates’ court also—as indeed the particulars of the charges connoted—actually required there to be a causal connection between the presence of the car on the road and the accident…

65.  The judge seems to have thought that (leaving aside the driving without a valid certificate)  the initial charges were based upon the driving only after the collision.  That was not correct: pre-collision aspects had also been relied on.  The driving had been unlawful throughout.  In truth the judge’s approach, in saying that there was no more than “some contextual overlap”, downplays matters and was itself tantamount, with all respect, to adopting the narrow approach wrongly taken by the Crown Court judge in R v Phipps which the Court of Appeal had rejected.  No doubt it can be said, as Hughes LJ said in R v Arnold [2008] EWCA Crim 1034; …, that there can be a difference between two charges founded on the same facts and two charges sharing some facts in common.  The present case, however, on analysis, falls into the former category.

66.  Mr McGuinness nevertheless insisted that all had changed in the light of Mr Hague’s report which had not been available at the time of the first charging decision.  We take the view that such a point logically more obviously arises in the context of the second issue as to whether there were special circumstances (which was the way the matter was presented to, and dealt with, by the judge).  At this stage of the argument, the obvious riposte to this argument is that the facts had not changed.  What had changed, as we have already said, was the evaluation of the evidence as to those facts, in the light of Mr Hague’s report.  But, that said, we will deal with some aspects of his argument at this stage.

67.  Mr McGuinness submitted that the initial evaluation had been vitiated because of the fundamental error of PC Hannan, as identified by Mr Hague, as to the time frame between the images on the CCTV.  That, he said, made all the difference.  In this regard, he relied, as we have said, on the statement in R v Dwyer that “substantially the same facts”, or “the same incident”, are to be taken as referring to the relevant state of affairs “as they existed to the knowledge of the prosecutor at the date the proceedings were concluded”.  And here, he said, the prosecutor at that time had not appreciated the true position as to the time intervals and hence as to speed.

68.  If this is a right approach, the implications are potentially disconcerting.  One, no doubt simplistic, example was put in argument.  Suppose an incident of domestic violence where a victim with a painfully bruised jaw is taken to hospital.  A radiographer examining the X-rays erroneously concludes there is bruising but no fracture.  The assailant is speedily charged with common assault, pleads guilty and is sentenced.  If the victim thereafter complains of ongoing pain and further examination of the same X-rays by a different radiographer then indicates the existence of a fracture, then on the argument of Mr McGuinness a new charge of assault occasioning actual bodily harm could potentially be brought on the basis that the facts were not substantially the same.  That is hard to credit.  One can readily think of other examples: which might, indeed, not even involve new expert evidence, as such, at all.  It is a troubling proposition that subsequent correction of errors or failures or oversights in an initial investigation and charging decision can of itself give rise to an assertion that the incident was not the same.

69.  We also add that although the principles on seeking to adduce fresh evidence on appeals, whether under the principles of Ladd v Marshall [1954] 1 WLR 1489 … for civil appeals or under section 23 of the Criminal Appeal Act 1968 for criminal appeals, are perhaps not directly in point in the present context, they are, we think, analogous and illustrative of the caution to be shown when fresh evidence or a change of circumstances is to be relied on following determination of a case.  In both such situations, one factor invariably required to be taken into account is whether the proffered fresh evidence could reasonably have been available at the first trial.  Certainly, on appeals against conviction, the appellate court will ordinarily also be very wary of fresh evidence in the form of what is sometimes called “expert shopping” … At all events, the present case is one where in essence the prosecuting authorities had reached a different charging decision following conclusion of the first proceedings based on a new expert report evaluating the same evidential materials as were available to the first expert.  In this respect, we take the view that the statement in R v Dwyer at para 25 as to what is known by the prosecutor by the time the proceedings were concluded is further to be modified so as to add an additional requirement by reference to what reasonably could have been known to the prosecutor by the time the proceedings were concluded.  Were it otherwise, the prosecution might actually be advantaged, in making a further charging decision following a previous conviction, by its own wholesale failures and neglect in investigation at the first stage…

70.  In the present case, the proposition that all that occurred arose out of “the same incident” (in the language of Lord Pearce in the Connelly case and Clarke LJ in the Phipps case) is surely at least also consistent with the very fact that, in the light of what happened on the night of 26 November 2016, the prosecution carefully considered whether a charge of causing death by dangerous (or careless)  driving could properly be brought.  After a full investigation, it decided that it could not.  Instead it decided that matters merited the four charges brought in the magistrates’ court: charges to which the defendant pleaded guilty and was sentenced.  That is revealing.

71.  In our judgment, on analysis this case, overall, falls squarely within the principles of the Elrington, Beedie and Phipps cases.  The further charge in the Crown Court was based on substantially the same facts, and the same incident, as had featured in the magistrates’ court proceedings.

(2)  Special Circumstances

72.  Were there, nevertheless, special circumstances which justified the bringing of the further charge of causing death by dangerous driving? The arguments to us on this issue to a considerable extent, as we have indicated, deployed the same arguments as raised on the first issue.

73.  The decision of the judge on this issue at this stage, prior to any ultimate decision as to whether or not to order a stay, was not an exercise of judicial discretion as such.  Rather, it was an exercise of judicial evaluation by reference to the circumstances of the case.  But, that said, the appellate court will ordinarily be slow to interfere with such an evaluation.

74.  In the present case, however, the judge’s reasoning was, with all respect, flawed.  She made clear, for instance, that one point which she relied on in reaching her ultimate conclusion on special circumstances was the very wide disparity in gravity between the two sets of proceedings.  But that will usually be the case in this context.  Indeed the disparity in R v Beedie itself could hardly have been wider: yet the Court of Appeal specifically held that that of itself could not amount to a special circumstance.  Moreover, the judge had also relied for this purpose on a differentiation between what happened before and what happened after the collision: but for the reasons given above that was not an available factor to be relied upon, either.

75.  However, the judge’s central point was based on the new report of Mr Hague, subsequently obtained, which had identified errors in PC Hannan’s report.  Does this of itself sufficiently constitute special circumstances for this purpose?

76.  Mr Butler was disposed to argue that there had been unreasonable behaviour on the part of the prosecution at the time of the first charging decision.  If, as has since been said, PC Hannan was relatively newly qualified in his post and in particular had very limited expertise in CCTV image analysis on speed, then all the more reason, Mr Butler submitted, to have raised at the time supplemental questions on his shortly expressed conclusions on the issue of speed or to have obtained the views of a further and more experienced expert: and all the more so in the light of Mr Rashid’s statement and in the light of what the CCTV had appeared to indicate by reference to the relative speed of the Astra compared to other cars captured on the CCTV.

77.  We do not accept this particular point.  The Crown Prosecution Service evidently had considered the matter carefully and, on the basis of the materials available to them (which included PC Hannan’s report and statements), decided not to pursue a charge of causing death by dangerous driving: explaining this to the magistrates’ court.  We are certainly not prepared to find that they acted unreasonably in placing reliance on PC Hannan’s report and in their initial charging decision.

78.  But, that said, matters need to be looked at more widely than that.  The police themselves made their investigations.  The method and product of their investigations cannot be divorced from the charging process as a whole in this case.  Here, they did not choose to instruct Mr Hague.  They chose to instruct PC Hannan.  He produced his collision report, which was detailed.  He did not qualify his opinion on the issue of speed by indicating that he lacked the appropriate expertise or in any other way; and, notwithstanding the statement of Mr Rashid, there was no further discussion or exploration of the point at that time.  The prosecuting authorities, bluntly put, have to live with that.

79.  In our view, a change in position on charging made solely by reference to the new expert report obtained following initial conviction and sentence and founded on the same facts that were in existence at the time of the first charging decision cannot, in the circumstances of this case, amount to a special circumstance sufficient to justify refusing to grant a stay.  To hold otherwise would amount to a significant and unwarranted encroachment on the application of the principles of Henderson v Henderson and of the Beedie and Phipps cases.

80.  Mr McGuinness also sought to place some reliance on R v Antoine, where a stay was held properly to have been refused even where there had been an incompetent blunder as to initial charging by the prosecution and even where, as he pointed out, on no view had any fresh evidence emerged.  But R v Antoine was demonstrably an exceptional case, very different from the present.  First, in that case the erroneous charge as brought was contrary to what was really intended: the mind did not go with the act, as it were.  But in the present case causing death by dangerous (or careless)  driving was carefully considered as a possible charge and was consciously rejected.  Further, in R v Antoine the defendant had from the start been expecting a sentence of ten years and must have known, at the time he pleaded guilty in the magistrates’ court and was sentenced on the same day, that he was the undeserving beneficiary of a complete blunder.  Moreover, in that case attempts to correct the error were immediately made by the prosecution and fresh charges were very swiftly brought.  In the present case, however, the defendant would, as Mr McGuinness fairly accepted, reasonably have believed that, on being sentenced in the magistrates’ court and when it had been openly said that he was not to be sentenced for causing Mr Lee’s death, that was the end of the matter.  In fact, the present charges were not even brought (as we were told, without any prior notification to the defendant)  until some two years later.  Overall, in R v Antoine it could properly be adjudged that continuance of the proceedings did not offend the court’s sense of justice and propriety.  That is not so here.”

96.於 Alexander 案，其中一位大比數的 Stanley Burnton 法官指：

“9.  …As I have already said, it is clear and common ground that a caution is not a conviction for the purposes of the defence of autrefois acquit, or for that matter autrefois acquit.  Where, however, criminal conduct has been the subject of an agreed caution, in the absence of good reason for it to be the subject of a subsequent prosecution, such a prosecution will generally constitute an abuse of the process of the court.  Information or evidence obtained subsequent to caution, such as details of injury to a victim significantly exceeding what had previously been known would generally constitute a good reason: see R v Gore [2009] 1 WLR 2454.”

97.Stanley Burnton 法官當時談及的是警誡後的檢控。況且，他指新資料或新證供一般是檢控的「好理由」，而「免受雙重損害」測試是要求控方提出「特別或特殊的理由」。

98.本席亦接納於以下的情況，Wangige 案確立，新的專家意見並不構成特別或特殊的情況：

(1)  如基本事實（primary facts）沒有任何變更；

(2)  控方於首次檢控完結前已有合理理由向專家索取進一步意見；

(3)  控方卻沒有於首次檢控完結前向專家索取進一步意見；

(4)  控方於首次檢控早已完結後，才索取新的專家意見；

(5)  新的專家意見是基於首次檢控已知的基本事實，即基於相同事實而改變指控立場。

99.可是本席亦認同，新的專家意見或其他證供並非永遠不能構成特別或特殊情況，要看案件實際情況而定。面對該情況時，法庭必須特別謹慎處理（見 Wangige 案第 81 段）：

“81.  In so concluding on this aspect of the case, we make clear that we are not saying that the obtaining of fresh expert, or other, evidence designed to correct an error or oversight or omission relevant to a first charging decision can never sufficiently constitute a special circumstance.  Ultimately, all will depend on the particular circumstances of the particular case.  What we do say is that on such a scenario very close scrutiny indeed is called for before it may properly be adjudged that a second prosecution may fairly proceed.”

100.辯方亦援引 Wangige 案，指兩次訴訟程序之間的嚴重程度存在巨大差異，並不構成特殊情況。就 Phipps 案，辯方指：

「50.  然而，正如上文 Wangige 案中所引述的，英國上訴法庭在 Beedie 一案中曾明確指出，兩次訴訟程序之間的嚴重程度存在巨大差異，並不構成特殊情況（見 Wangige 案第 74 段）」

101.本席接受辯方所述，Wangige 案及 Beedie 案確立，就算兩次訴訟程序之間的嚴重程度存在巨大差異，不構成特別或特殊情況。另外，Phipps 案確立，以下因素亦不構式特別或特殊情況：

(1)  警方或控方的疏忽或錯誤；及

(2)  受害人家人或公衆的關注（public interest）[亦見 Beedie 案]

本案的分析

本案是否違反「免受雙重損害」的原則

102.辯方指：

「34.  與 Wangige …一案相似，在本案第一次檢控決定和第二次檢控決定之間，主要事實沒有任何改變。兩次起訴都是依賴出於同一事件的相同事實，包括以下主要事實及專家證據：-

(1)  被告人在停泊小巴後離去，及後回到小巴，打開車門後關上，小巴開始向前滑行；

(2)  小巴最後在熙和街與英皇道交界附近剷上行人路，撞入一個住宅大廈入口後停下；

(3)  意外導致一名途人當場死亡，三名途人當日送往醫院後死亡，及一名途人於約一個月後死亡。各死者的身份均已被確認；

(4)  意外導致 9 人受傷，包括第二項控罪詳情（危險駕駛引致他人身體受嚴重傷害）中所所列明的兩名人士；

(5)  消防員到場後檢查小巴，發現手掣被拉起在第 5 格，而波棍處於「空波」位置；

(6)  警方於現場搜證並拍下照片，並在有關車輛及鄰近商舖取得閉路電視錄像；

(7)  運輸署處理高級驗車主任 何元宗 先生就小巴性能的專家意見，何先生認為，小巴並沒有任何機械缺陷，小巴的手掣槓桿最高可拉起 8 格；測試中發現小巴如果在一個斜度為 6.07 度的斜度上，要拉起到第 5 格開始才可令小巴安全的停泊；及

(8)  政府高級化驗師 陶志恆博士就有關閉路電視片段的專家意見，陶博士分析了有關的閉路電視錄影片段後認為當時在小巴向下滑動前，手掣槓桿可能在第 4 格。

35.  值得留意的是，整個事件的始末都被附近許多閉路電視及車輛的行車記錄儀記錄下來。從被告停下小巴開始，到他離開小巴、回到小巴並打開駕駛座的車門、關門以便另一輛貨車通過，到小巴開始向下滑動、被告試㘣在小巴前面擋住、被捲入車底，到小巴繼續向下滑動，並與其他車輛和行人相撞，這些事件都被閉路電視清楚的記錄。對於案發當日所發生的事情，根本不可能有爭議。在這第二次檢控中，額外的證人並沒有提供任何新的主要事實。

36.  新增的證人的角色主要包括閉路電視片段的提供者、確認死者身份的人士、護送傷者到醫院的警察、當日在場的警察及醫護人員。他們只是補充了有關死者的背景資料、當日現場情況及傷者的傷勢進度。另外亦新增了兩名法證科學專家證人，但他們報告的日期均早於第一次檢控。

37.  何元宗先生在死因研訊作供後及在本案提出起訴前，即 2022 年 6 月 15 日及 7 月 19 日，提供了補充筆錄供詞，主要解釋他在研訊作供時給出的答案。同樣地，陶志行博士在死因研訊作供後及在本案提出起訴前，於 2022 年 6 月 10 日提交他的補充專家報告。但值得留意的是，何先生和陶博士的補充報告對他們原有的結論並沒有任何實質性的增補。他們的意見仍然是當時小巴的停泊制動器被拉至第 5 格或第 4 格，未妥善使用制動器阻止小巴的車輪轉動，導致小巴向下滑行。這是控方在第一次檢控中唯一的檢控基礎，這也是他們在第二次檢控中的唯一基礎。

38.  即使何先生和陶博士可能會有進一步的意見，但本案本質上是控方在第一次檢控結束後，基於專家就相同證據資料，即主要事實，提供的補充意見，而做了不同的起訴決定。這些專家所分析的證據資料在他們撰寫其第一份報告，即在第一次檢控前就已經存在。

39.  因此，新增證人、證據對意外的起因及經過、小巴停泊制動器的位置等資料並無任何實質性的增補。

40.  由此可見，本案和傳票案件的案情都是出於同一事件的相同主要事實，唯一檢控的基礎都是被告未有將手掣動桿拉治安全水平，即未有妥善固定小巴的停泊制動器。這就是控方所指危險駕駛的方式（或在本案中是停車的方式），令小巴向下滑行，導致意外發生。

41.  本案的情況與 Wangige 一案極度相似：本案被告同樣曾於裁判法院被定罪，而在死因研訊中途，他就着同一次事件被重新檢控更嚴重的罪名，即危險駕駛引致他人死亡及危險駕駛引致他人身體受嚴重傷害。

42.  然而，唯一明顯的分別是，在 Wangige 一案中，警方獲得了新的專家意見，而該專家對速度問題得出了不同的結論，因此決定重新檢控。在本案中，這樣的情況並不存在。因此，本案比 Wangige 案有更有力的理由支持擱置檢控。從上述分析可見，何先生和陶博士的補充報告對他們原有的結論並沒有任何實質性的增補，他們沒有提出和 2019 年時不同或相反的意見，也沒有就任何新的主要事實，即第一次檢控時不存在的主要事實提出進一步的意見。控方亦沒有尋求其他專家的意見。

43.  無論如何，控方所參考的證據，包括專家證人依賴的主要事實及他們的意見、新增的證人的口供，均在控方考慮首次檢控時已經存在。

44.  再者，警方早亦已在 2019 年 5 月 10 日，警方曾以涉嫌「危險駕駛引致他人死亡」、「危險駕駛引致他人身體受嚴重傷害」及「沒有固定汽車制動器材離開車輛」罪拘捕被告。由此可見，控方必定是全面考慮全部證據及經深思熟慮後才最後決定在 2019 年 6 月 10 日以傳票控告被告「沒有固定汽車制動器材離開車輛」罪。正如 Wangige 一案中英國上訴庭的觀察，基於相同事實而改變指控立場，令被告面臨第二次起訴無疑是不公平和具壓迫性的。

45.  此外，被告已在傳票案件中承認該案控罪及案情；由於傳票案件和本案的案情是相同的（見上述第 34 段），且控方所依賴的檢控基礎沒有分別，被告之前於傳票案件中承認的案情將會不公平地損害他於本案中的抗辯，因為被告不能在這第二次審訊中挑戰或推翻他已在傳票案件中承認的控方案情。」

103.控方則引用 Alexander 案中大比數的兩位法官的論點分析本案，指：

「22.  Alexander 案兩位持大比數意見的法官，在裁定「不小心駕駛」檢控並不構成濫用程序、故不應被法庭擱置時，提出以下論點：

(1)  控方提出的警告和控罪，針對被告人不同的行為（the conduct of the defendant was different），分別為其非法禁錮及駕駛行為；

(2)  兩罪的情節，即使或有重疊（與案發時車內載有被禁錮的乘客，乃不小心駕駛的成因之一），但兩者的控罪指稱及關鍵的控罪元素並不相同；

(3)  兩罪的本質及審訊模式不同 - 不小心駕駛罪行乃經簡易程序罪行，非法禁錮為可公訴罪行，兩者本質上需由不同級別法院處理。即使在某些情況下，兩者或可由同一法院處理，基於兩罪本質上的不同，即使案件的情節牽涉同一件事，亦大有可能需要分開控罪及法院處理；

(4)  兩罪針對的受害者不同 - 非法禁錮的控罪針對被禁錮者一人；不小心駕駛則針對社會大眾有可能受害於被告人的駕駛態度（members of the public are liable to be endangered by the defendant’s driving, if indeed it was careless）；

(5)  兩罪的罰則不同 - 如此依靠單一控罪的罰則，根本無法有效懲治被告人的行為，如非法禁錮罪行，不能扣分或撤銷被告人的駕駛資格；

(6)  控方於第一次檢控後才獲得新資訊或證據，一般可視為支持進行第二次檢控的良好理由；

(7)  警方就非法禁錮罪行作出警告時，並沒有對被告人作出任何表面或默示的承諾（express promise / implied assurance），不會就其駕駛行為作出檢控，及

(8)  沒有確切證據顯示，被告人就警方的警告作出了對其不利的行為，或他將會在不小心駕駛案審訊中蒙受重大不利，及

(9)  再者，法庭亦有權在不小心駕駛罪的審訊中，剔除被視為對被告人不公平的證據。

23. 值得留意的是，上述的論點，乃遵從樞密院訂定的「嚴謹原則」下作出，控方陳詞，Alexander 案的分析大綱，於本案具相當參考價值。

24. 套用 (1)  - (5)  於本案，即使該傳票及危駕控罪關乎同一宗交通意外，兩次檢控的控罪，明顯建基於不大致相同、遑論完全相同的事實：-

(1)  該傳票針對的，僅為被告人身為該小巴的掌管者（person in charge of vehicle），在下車（vacating）一刻，沒有確保手掣被拉好；危駕控罪針對的，是被告人身為駕駛者，在駕駛（driving）過程中（即下車前），以綜觀為危險的水平，即在選擇將該小巴停在斜坡、卻沒有將手掣拉盡至足以安全停泊車輛的程度、沒有將輪軚扭向左方，及沒有俗稱「入後波」的情況下，導致他人傷亡；

(2)  控方從不諱言，兩者的情節有事實上重疊的地方 - 即被告人沒有拉盡手掣。但從上述案例可知，兩案案情有重疊的地方（two charges sharing some facts in common），不等於兩套控罪是建基於相同的事實（two charges being founded on the same facts）：-

(a)  從該傳票的罪行詳情可見，傳票控罪的關鍵元素，僅限於被告人在離開車廂當刻的不作為，而指稱不作為的程度，僅限於沒有確保手掣拉至能防止至少兩個車輪轉動（而非全車移動）而已。除此之外，大致案發時被告人是否在駕駛 （driving）、他有沒有其他的錯失 （即危駕控罪指稱的未有入後波及將車輪扭左）、他的駕駛水平及態度如何、他的作為 / 不作為有沒有造成傷亡、甚至小至車輛最終有沒有作出多於兩個車輪的轉動，通通只是危駕控罪，而非該傳票的關鍵控罪元素。更甚者，法例訂明必須考慮已斷定一名駕駛者水平的諸多情況，亦與該傳票無關；

(b)  再舉一個簡單的例子，肇事車輛是不是大型車輛、是不是接載學童的小巴、其時是不是停在斜坡、停車的位置是不是鄰近學校及繁忙的路段、及被告人是否職業司機，統統不影響被告人有沒有干犯該傳票的罪行，亦與判刑沒有直接的關係，但對危駕控罪卻非常重要；

(c)  正如上訴法庭於 Hamer 案提到（參見上段 20），該傳票及危駕控罪的辯護理由並不相同。該傳票的主要辯護，乃被告人有沒有「合理辯解」不拉盡手掣；而於危駕控罪，辯護的重點，乃被告人整體駕駛是否屬於法例下訂明的危險水平。單憑被告人干犯傳票的行為，不足以證明他干犯危駕控罪；反之，被告人即使被裁定整體駕駛水平不屬危險，以不一定代表他沒有案犯該傳票的罪行；

(3)  如 Alexander 案一樣（參見上段 22(3)），即使該傳票及危駕控罪或能同時被轉介區域法院處理，兩者本質上，確然是不同的罪行；

(4)  該傳票沒有針對個別的受害者，相關的案情撮要亦對事件的死傷未有多加着墨。無可厚非地，茲因導致死傷並非該傳票的控罪元素，被告人承認的案情，甚至沒有列明各位傷者的傷勢。相反，危駕控罪顧及的，乃共七位道路使用者因危險駕駛行為引致的嚴重傷亡，以及社會大眾就被告人危駕行為承受的風險，及

(5)  該傳票的最高刑罰，僅處第一級罰款（即港幣 2,000 元）。反觀危駕控罪的最高罰則，為第五級罰款（即港幣 50,000 元）、終身（或七年）監禁、被取消駕駛資格及 / 或強制進修駕駛課程。於本案，基於被告人以書面認罪該傳票，法庭直前沒有證據 / 紀錄顯示，當年判處被告人罰款的法官，有意圖就意外造成傷亡而判罰被告人。反而自常理可知，立法當局的原意，不可能預期僅以傳票控罪及最低級別的罰款，處理涉及人命傷亡（遑論本案涉及多達七人」的嚴重交通案件。從 (5)  - (6)  分析可知，危駕控罪指稱的罪責，明顯比該傳票更廣更深。

25. 綜合上述，控方陳詞，導致被告人第二次審訊（危駕控罪）的事實，與導致首次審訊（該傳票）的事實並非相同或大致相同。

26. 辯方書面陳詞第 34 段羅列的「主要是實」，忽略了於危駕控罪包含的多項重要指稱：陳詞的第 37 及 40 段，亦錯誤拿捏控了方就危駕檢控的基礎。法庭現自上述陳詞已可而知，危駕控罪包含的事實，比該傳票更多更廣泛，包括被告人 (1)  沒有入後波導致該小巴在已經缺乏手掣的制動力下，缺乏任何的額外阻力，阻止小巴急速前溜，及 (2)  沒有將車輪扭左導致小巴向前移動時，完全不受左邊石壆阻擋，向正前方以累積高速前衝，造成難以阻止的災難性後果。而有證據顯示，(3)  被告人身為商用車職業司機，在入職前應曾接受駕駛安全相關的課程，故他在危駕控罪中的罪責，與該傳票不可同日而語。」

104.本席對控方的陳詞不敢苟同。 控方依賴 Alexander 案，但該案的論點是「一罪兩審」和「濫用程序」；而本案的論點則為「免受雙重損害」。 毫無爭議空間的是，無論根據 Yeung Chun Pong 案或 Connelly 案，比較兩罪的犯罪元素只適用於「一罪兩審」原則；「免受雙重損害」的測試是兩罪是否源自相同或大致相同的事實。本案中，控方卻接二連三地要求本席比較兩次檢控的控罪元素，例如傳票控罪是否包括駕駛、危險及導致他人傷亡（見控方陳詞第 24(1) 至 24(4)  段）。 控方重覆地指出兩次檢控的控罪元素不同，是要求法庭以「一罪兩審」的測試考慮「免受雙重損害」的爭議。這個陳詞完全違反所有案例奠定的原則。

105.本席明白「免受雙重損害」亦是「濫用程序」的其中一個基礎。於 Alexander 案中，其中一位大比數的 Stanley Burnton 法官指出唯一的論點是檢控是否「一罪兩審」及 / 或「濫用程序」。就「一罪兩審」，他運用了 Connelly 案訂明的原則；就「濫用程序」，他運用的測試是上訴人能否獲公平審訊（見判詞第 7 - 8 段）。因該案提述的用語，他從沒運用「免受雙重損害」的測試 （見判詞第 9 - 14 段）。

106.另外，Stanley Burnton 法官亦特別指出 Phipps 案中，兩項控罪均為與駕駛有關，與 Alexander 案的情況不同：

“15.  This case differs in important respects from that considered in R v Phipps …, where both offences in question were driving offences.”

107.就檢控是否違反「一罪兩審」的原則（Question 1 and 2），另一位大比數的 Treacy 法官亦運用了 Connelly 案奠定的測試。考慮該兩個問題時，他曾指出：

“21.  …(b)  the facts necessary to prove false imprisonment are distinct from those necessary to prove careless driving,”

108.就檢控是否「濫用程序」（Question 3），Treacy 法官採納的測試是：

‘24.  …The question is whether it would be fair for the defendant to be tried for careless driving.  It is clear from the Connelly case that the approach to autrefois convict or acquit arguments must be one of giving the doctrine limited scope.  A similarly restrictive approach is to be taken with abuse applications: see for example R v Horseferry Road Magistrates’ Court, Ex p Bennett…

25.  In my judgment, there was no unfairness or manipulation of court procedures in issuing proceedings for careless driving after cautioning for false imprisonment.”

109.考慮過該案控方引述的元素及其他元素後（見判詞第 26 至 32 段），Treacy 法官指出：

“32.  (g)  It is to be noted that the case stated does not appear to consider the principles of abuse of process in any detail.  It reads:

“We are of the opinion that: the police caution for false imprisonment and the summons for driving without due care and attention arose from the same circumstances; the [defendant] should not be punished twice for an offence arising out of the same or substantially the same facts; that to do so did offend against the established principles of autrefois convict and of double jeopardy.  Accordingly we dismissed the information on the basis of autrefois convict and double jeopardy.”

33.  The justices appear to have equated abuse of process with autrefois convict by describing the prosecution as “inappropriate” in the third question framed, and found grounds for dismissing the information on that basis.  None of the reasons given in the case for the justices’ decision gives a sufficient basis for a finding of an abuse, for the reasons set out earlier in this judgment.”

110.控方完全漠視於 Alexander 案中法庭須考慮的論點；只是搬字過紙，斷章取義。事實上，Alexander 案顯示，就算兩項控罪源自同一事件，控方依賴的事實也可以不同。Alexander 案中的兩位大比數法官均指出該案的情況與 Phipps 案不同。控方卻對此隻字不提，有誤導法庭之虞。

111.實際上，無論是「一罪兩審」或「免受雙重損害」的前設均為上訴人已於首次的檢控被擁有刑事管轄權的法庭裁定有罪或無罪。於 Alexander 案中，上訴人根本沒有面對兩次審訊；被控前亦沒有被任何法庭裁定「非法禁錮」有罪或無罪。該案與本案的情況完全不同。

112.控方指傳票案中，控方須證明被告人為涉事小巴的掌管者（person in charge of vehicle）；而於危駕控罪中，控方卻須證明被告人為涉事小巴的駕駛者（見陳詞第 24(1)  段）。這陳詞完全漠視事實。控方指被告人是涉事小巴的掌管者是因為案發時被告是涉事小巴的駕駛者。控方於兩項控罪依賴的是完全相同的事實。

113.控方指於傳票案件中，針對被告人的時間是下車一刻沒有確保手掣拉好；於危駕控罪中，針對的時間是被告下車前選擇將小巴停在斜坡，卻沒有將手掣拉好。沒有任何駕駛者會在下車後才拉手掣。換言之，兩項控罪均是針對被告人下車前的作為或不作為；而該作為或不作為均為沒有拉好手掣。

114.於陳詞第 24(2)  段，控方指案情（例如涉案小巴是否大型車輛、是否接載學童的小巴、是否停在斜坡、停車的位置是否鄰近學校及繁忙的路段、被告人是否職業司機，通通與傳票案件的判刑沒有直接關係。任何法官判刑時均須考慮整體案情；這陳詞簡直荒謬。

115.就控方陳詞第 24(3)  段，本席已於上文指出 Hamer 案的情況與本案截然不同，不適用於本案，現不贅。

116.於陳詞第 24(4)  段，控方指本案兩項控罪的受害人有別；於傳票案件中，控方無須證明有人受傷或死亡；危駕控罪則涉及多名死傷者。本席不同意。控方的陳詞再次著眼於控罪元素，而這並非「免受雙重損害」的測試。事實上，兩項控罪的目的均是保護大衆市民。

117.於陳詞第 24(5)  段，控方指出兩次檢控的控罪罰則不同。本席同意該說法，但罰則的分別並非「免受雙重損害」測試的考慮元素。控方指本庭席前沒有證據或紀錄顯示，當年處理傳票案件的裁判官有意圖就意外造成傷亡而判罰被告人。這完全是扭曲事實。於傳票案件中，控方羅列了意外造成的結果。法庭判刑時必須考慮整體案情，否則便是原則上犯錯，而控方對裁判官的判刑從沒異議。控方又指，立法當局的原意，不可能預期僅以傳票控罪及最低級別的罰款處理涉及人命傷亡的嚴重交通案件。立法當局只負責立法，不會參與檢控的決定；而控方是唯一可作出檢控決定的機關。立法機關只能倚賴控方作出適當的檢控決定。既然本案意外造成嚴重傷亡，控方更應該於首次檢控時（或最遲於首次檢控完結前）以最嚴謹的態度考慮適當的控罪，作出檢控。

118.控方於第 26 段指辯方羅列的「主要事實」忽略了危駕控罪包含的多項重要指稱，亦錯誤拿捏控方指控危駕的基礎，包括被告人 (1)  沒有入後波，導致涉案小巴在已缺乏手掣的制動力下，欠缺任何的額外阻力，阻止小巴急速前溜；(2)  沒有將車輪扭左，導致小巴向前移動時完全不受左邊石壆阻擋，向正前方已累積高速前衝，造成難以阻止的災難性後果；及 (3)  被告人身為商用車職業司機，在入職前應曾接受駕駛安全相關的課程，因此其罪責與傳票案件不可同日而語。

119.首先，兩次檢控控罪的罪責並非「免受雙重損害」測試的元素。2019 年 5 月 10 日，警方已經以涉嫌「危險駕駛引致他人死亡」及「危險駕駛引致他人身體受嚴重傷害」拘捕被告人。有關被告人沒有「入後波」及「將車輪扭左」的證供於首次檢控前已存在。既然如此，控方便應秉承其責任，於首次檢控時（最遲於首次檢控完結前）嚴謹地考慮應否落案起訴被告人「危險駕駛引致他人死亡」及「危險駕駛引致他人身體受嚴重傷害」。

120.控方續指：

「27.  上述的事項，完全沒有在該傳票定罪 / 判刑時供法庭處理。相對而言，該傳票針對的單一作為 / 頂多只能被視為危駕的小部份（a small carve-out），兩者不涉及完全或大致相同的事實。控方進行的第二次檢控的決定，不能被視為在同等事實上博取第二次檢控機會（second bite of the cherry）；參見 R v Govorusa 案 [2018] EWA Crim 2841…判辭第 11 段及 R v Wabelua 案 [2020] EWCA Crim 783…判辭第 13-14 段。…」

121.控方的陳述並不準確。Govorusa 案涉及兩個不同的犯罪集團。第一個犯罪集團位於英國中部（Midlands），於 2016 年 1 月 1 日至 2017 年 5 月 3 日期間，向南威爾斯及英國南部地區提供以一千克包裝的可卡因（控罪 1）。第二個犯罪集團位於南威爾斯，於 2016 年 2 月 5 日至 2017 年 5 月 17 日期間向南威爾斯及 Gwent 區域提供可卡因（控罪 2）。控方指兩幫犯罪集團有重疊，即第二個犯罪集團的部份毒品來自第一個犯罪集團。2017 年 2 月 3 日，上訴人 Govorusa （上訴人）的汽車被警方截停，警方發現上訴人管有一千克高純度可卡因。上訴人被控一項管有危險藥物意圖作販運。上訴人承認控罪，並於 2017 年 3 月 1 日被 Alyesbury 的法庭判處 64 個月監禁。後來，上訴人被控串謀販運危險藥物。原審時，上訴人指第一次檢控的控罪是第二次檢控的一部分，違反 Connelly 案、 Beedie 案及其他案例奠定的原則，要求永久擱置第二次檢控。原審法官駁回該申請後，上訴人便承認控罪。上訴人不服定罪及判刑，提出上訴。英國上訴法庭指：

“11.  …The argument seeks to demonstrate that the judge was wrong in his conclusion.  We are not able to accept that submission.  First, we do not consider that the offending was based on the same or substantially the same facts.  The single possession offence was a small carve-out from the wider conspiracy.  That conspiracy involved at least 4 kilograms with which Govorusa was directly involved, quite apart from his significant involvement in the wider conspiracy more generally.  Secondly, although on 31st January 2017 the South Wales Police had observed Govorusa meeting Bledar Mzui (the senior figure in the Midlands organised crime group), his involvement in the wider conspiracy was not then known.  The evidence eventually deployed against this applicant included recordings from a probe, which demonstrated extensive involvement with Mzui over many months.  His voice had not been identified before the prosecution in Aylesbury was complete.  That identification came later.  Thirdly, and in any event, whilst there was evidence which would have enabled the South Wales Police to arrest Govorusa on 31st January 2017, it fell short of the evidence of the wide conspiracy on which he was eventually prosecuted.  Statements from officers concerned in the operation explained that they did not move against him immediately on that limited basis for fear of compromising the wider investigation.” （強調後加）

122.英國上訴法庭指出，管有危險藥物控罪只涉及 1 千克可卡因，而串謀控罪則涉及最少 4 千克可卡因，涉案的毒品份量不同；除此之外，有其他證供顯示上訴人於串謀扮演重要角色。2017 年 1 月 31 日，警方只觀察到上訴人與主謀會面，但沒有證供顯示上訴人參與串謀。當時警方有證供拘捕上訴人，但不足以證明上訴人牽涉串謀。針對上訴人串謀是於首次檢控完結後才獲得。

123.Govorusa 案只是法庭運用同一原則於不同情況下獲得不同結論的例子。

124.Wabelua 案涉及 3 名上訴人：

(a)  他們被控以數項「販運人口意圖作剝削」罪。2019 年 4 月 11 日，於審訊後期，其中兩名被告人承認 3 項控罪。2019 年 4 月 17 日，上訴人 Wabelua 被裁定 1 項控罪罪名成立。 案情指 3 名上訴人利用 5 名未成年人士及一名弱智人士販運危險藥物。針對 Wabelua 的控罪（控罪 6）指他安排一名 16 歲的年青人販運危險藥物。

(b)  該案中，3 名上訴人曾作出擱置法律程序的申請。

(c)  該案前，即 2014 年，3名上訴人曾於 Woolwich 被控「串謀販運危險藥物」。案情指 3 名上訴人於 2014 年 9 月 11 日或之前，連同其他人士，串謀販運毒品，即指派他人運送毒品。2015 年 1 月 30 日，Wabela 承認控罪。其餘 2 名上訴人則經審訊後被定罪。2014 年 7 月 29 日，Wabelua 於販毒案被拘捕時，身邊有 5 名男子，其中一名是涉及控罪 6 的年青人。可是該案沒有提及該年青人的年齡，亦沒提及該年青人於 2014 年 6 月被 Wabelua 利用作販毒。 最初，擱置法律程序申請的基礎包括「販運人口」控罪構成「一罪兩審」。後來，3 名上訴人放棄該說法，但繼續以其他基礎（包括「免受雙重損害」）作出申請。

(d)  擱置法律程序的申請被駁回。原審法官指：

“7.  In relation to the various grounds relied on by the appellants, the Recorder held:

a.  The charges in the present proceedings were not founded on the same facts, and did not arise out of the same incident, as the charges on the Woolwich indictment.  He accepted that in the Woolwich trial the prosecution, knowing that there might in future be charges of human trafficking offences, had avoided adducing evidence relating to the couriers who were the subject of the present charges.  He held that the circumstances of the drugs conspiracy had been "carefully circumscribed by the Crown in the Woolwich trial so as to avoid any activity in relation to the present … couriers featuring at all or in any significant way in that trial”.

b.  He rejected a submission that the human trafficking charges should have been prosecuted at the same time as the drugs conspiracy.  Any prejudice which might be caused to the appellants could be guarded against during the present trial and if necessary in sentencing.

c.  He found that the appellants had at no time been told in terms that they would never under any circumstances be charged with human trafficking offences.

d.  He did not accept that either Karemera or Alford had acted in some way to his detriment, or would be prejudiced if the present trial were to proceed.

e.  Nor did he accept that there was any risk of any form of double jeopardy in sentencing.

f.  He was satisfied that the present trial was in the public interest.

(e)  後來該案由一位法官處理；3 名上訴人以「濫用程序」申請重開擱置法律程序的爭議。該申請再被駁回。Wabelua 提出上訴。上訴法庭指：

“9.  …Two grounds of appeal are now put forward: first, that the prosecution of the offence of trafficking was an abuse of the process of the court; and secondly, that the judge had erred in refusing to admit a statement of a police officer in which that officer recounted something said to him by the youth named in count 6.

10.  A plea of autrefois convict is only available where the same offence is charged in a second indictment.  However, a judge has a discretion – recognised by the House of Lords in Connelly … to stay proceedings where a second charge arises out of the same or substantially the same set of facts as an earlier charge of which the defendant has been convicted.  In R v Beedie … it was held that this discretion should be exercised in favour of a defendant unless the prosecution establishes that there are special circumstances for not doing so.  In that case, the court also accepted a submission that a defendant should not be tried again on the same facts for more serious offences on an ascending scale of gravity.

11.  In arguing that the Recorder should have exercised this discretion in Wabelua's favour, Mr Moloney submits that "the alleged conduct on which both indictments were based was essentially the same conduct".  He relies on R v Phipps …, in which it was said that, save in special or exceptional circumstances, the prosecution should not be permitted to bring "a second set of proceedings arising out of the same incident as the first set of proceedings".  He also relies on R v Dwyer [2012] EWCA Crim 10, in which it was said that the underlying principle is that the obligation on the prosecutor is to lay all the charges which it wishes to bring arising out of the same incident.  Mr Moloney says that reference was made by the prosecution in the Woolwich proceedings to the fact that the appellants had used drug runners who were aged under 18, and that in sentencing for the drugs conspiracy the judge at Woolwich had been obliged by section 4A of the Misuse of Drugs Act 1971 to treat as an aggravating feature the use of persons aged under 18 to supply drugs.  He relies on the fact that Wabelua on 29th July 2014 was in the company of the youth named in count 6.

12.  Mr Moloney accepts that the trafficking offence could properly have been charged in the same indictment as the drugs conspiracy.  He submits that the evidence was available to the prosecution as at the date of the trial at Woolwich.  The prosecution had however chosen not to take that course.

13.  Ms Bex, in response, submits that at the date of the Woolwich trial, which could not be delayed without a necessity to seek an extension of the custody time limit, the state of the investigation into the human trafficking did not permit a decision as to charge then being made.  She further points out that Wabelua has at no stage admitted the elements of the human trafficking offence.

14.       Mr Moloney's submissions were well argued, but we cannot accept them.  The Recorder was in our judgment entitled to find that the trafficking charge was not based on the same or substantially the same set of facts as the drugs conspiracy.  It may be noted that in Beedie, exactly the same conduct had been relied on first to support a charge of an offence contrary to the Health and Safety at Work Act and then to support a charge of manslaughter.  In Phipps the same course of driving was the subject of charges, at separate times, of driving with excess alcohol and driving dangerously.  In Dwyer it was contended on behalf of the appellant that the court, when sentencing him at an earlier hearing for offences of possession with intent and possession of controlled drugs, had already dealt with the conduct which had become the subject of a later prosecution for conspiracy to supply controlled drugs.  Here, the Woolwich indictment charged Wabelua in relation to his conduct in entering into an agreement with others to supply drugs.  The present indictment, in contrast, charged him in relation to his conduct in intentionally arranging travel for a child with a view to exploiting him.  That was a distinct form of criminality involving different conduct at a different time.  That essential point is not altered by the fact that the drugs conspiracy charged in the Woolwich indictment was aggravated by the use of persons aged under 18 to supply the drugs.  That aggravating feature does not involve the crucial and distinct element of human trafficking.  We are satisfied that this was not a case of the prosecution seeking a second bite at the same cherry.”

125.事實上，Wabelua 也只是法庭以同一原則，應用於不同情況的例子。無可爭議的是，本案的情況與 Phipps 案的情況極度相似。就如 Phipps 案一樣，本案中的兩次檢控均源於被告人同一的駕駛方式。於 Wabelua 案，上訴法庭指出兩次檢控涉及的行為及時間均不同；上訴法庭亦指 Wabelua 案與 Phipps 案的情況不同。

126.控方續指：

「28.  為謹慎起見，即使法庭不接納上段 18-21 針對辯方援引之 Wangige 及 Phipps 案的原則性批評，控方謹曾詞，即使在事實及證據層面、本案亦與這些案例（包括 Wangige 案依賴的 Beedie 案）有明顯分野：-

(1)  於 Wangige 案，上訴人就一宗奪命車禍，先被控以一系列使用車輛相關的罪名。在他認罪後，控方就先前已有的車速證據重新獲取專家意見，並按照新的說法，控告上訴人危險駕駛導致他人死亡罪。該案兩次檢控針對被告人的唯一行為及檢控基礎，乃他在相同時段、以相同方式及身份使用汽車的過程。而經專家重新審視的，亦為同一個與車速相關的結論。相反於本案，該傳票及危駕控罪指稱的，分別涵蓋被告人在不同時段，以不同身份作出的不同作為 / 不作為。而控方在該傳票後獲取的專家證供，並不是針對已作出的證供再作考慮或更正，而是就之前未作供過的方面，提供新的專家證詞；

(2)  同樣地，Beedie 案的兩次檢控，即職業安全條例下的傳票罪行及其後的誤殺罪，均針對被告人完全一樣的作為 - 即身為肇事場所的業主，沒有確保死氣喉維持在安全的狀態，導致在場內工作的死者吸入過量一氧化碳死亡，及

(3)  於 Phipps 案，控方先後檢控上訴人醉酒駕駛及危險駕駛，控罪的基礎，同為上訴人的「駕駛」行為，而法庭在處理第一個檢控的刑罰時，已考慮了危險駕駛為加刑因素。於本案，該傳票針對的，並不是被告人的駕駛過程，亦沒有證據顯示，裁判官就該傳票進行判處時，將被告人的危險駕駛行為是作加刑因素。Phipps 案的控方上訴時承認，第二次檢控不涉及任何新增的證據，亦沒有特別情況支持，

(4)  相似的觀察，在 Wabelua 案…亦有作出。

29.  綜合上述，控方陳詞，危駕控罪與該傳票既不基於相同或大致相同的事實，本案沒有衍生議題一的情況，促使法庭進而考慮議題二。法庭可立即裁定，拒絕使用酌情權擱置危駕控罪。」

127.本席不同意：

(1)  本案的兩次檢控均源自同一事件；日期、地點、涉案車輛及案發結果均相同；

(2)  控方指兩項控罪的時間不同，是扭曲事實。兩項控罪均於被告人停泊小巴之後及離開車廂之前發生；

(3)  本案的兩次檢控均與被告人停泊小巴的方式有關；

(4)  如上文所述，於傳票案件中，控方須證實被告人是小巴的掌管者，而本案中，控方須證明被告人乃小巴的駕駛者。雖然控罪元素不同，但就上述元素控方兩次檢控中依賴的證供均一模一樣，即案發時被告人是小巴的司機；

(5)  控方指兩次檢控的時段有別。這簡直是強詞奪理。兩項控罪均是針對被告人停車後及下車前的作為或不作為；

(6)  控方指他們於第二次檢控（即危駕控罪）中所指的作為或不作為不單只是被告人沒有善用手掣，而是包括將小巴停在斜坡、沒有入後波、沒有將輪胎扭左等。可是控方完全沒有認真考慮專家的意見：

a)  於傳票案件中，控方的證供指，根據 何元宗 先生的意見，如被告人將小巴停泊在一個 6.07 度的斜坡上，須將手掣拉到最少第 5 格才可制停小巴（而小巴手掣共有 8 格）。換言之，如果被告人適當地拉起手掣，就算停在涉案的斜坡，小巴也不會向前溜；

b)  警方在死因研訊開展前已知悉案發時被告人沒有「入後波」。無論死因研訊前或後，警方均是從首次檢控之前獲取的片段中獲悉被告人沒有將輪軚扭左。可是警方是在死因研訊開展後才詢問專家有關上述事項的意見。於最新的供詞中，專家的意見是：

問答編號	警員問題	專家答案
13	私家小巴 HG365 的重量對私家小巴 HG365 需要拉起幾多格手掣有無影響？	重量越大，對制動力的需求就越大。
14	你可唔可以分析下今次意外成因？	小巴 HG365 未有拉妥停拍手掣，表示停泊制動系統並非在最良好狀態中運作。有機會停泊制動器因應用不妥，再加上多種不確定因素，例如風力、車輛震盪、車輛被碰撞等等影響，而未能提供足夠能承受車輛在斜坡上所受的重力，以致不能將停泊制動鼓鎖死至完全靜止，繼而造成車輛沿着斜坡向下溜。
15	請講解於上述交通意外中，如果係意外現場，私家小巴 HG365 拉起左 5 格手掣情況下，如果入咗空波，情況會點？	因停拍手掣未有拉妥，停泊制動系統並非在最良好狀態中運作，有機會受外力影響，以致停泊制動鼓不能被鎖死至完全靜止，車輛便會沿着斜坡向下溜
16	請講解於上述交通意外中，如果係意外現場，私家小巴 HF365 拉起左 5 格手掣情況下，如果入左一波或以上波段，情況會點？	這樣做會使傳動軸經由波箱齒輪與引擎連接，如要轉動轉動軸，便需要克服轉動一台靜止引擎之阻力，從而使轉動軸連接着之尾族車轆不易被轉動，當車轆仍然在靜止狀況時，私家小巴 HG365 便不會沿着斜坡向下溜，但多咗幾多咗力就答唔到。
17	請講解於上述交通意外中，如果係私家小巴 HG365 拉起左 5 格手掣情況下，如果入左後波，情況會點？	在向下斜坡之情況，一般來說，入後波會比入前波更好，因如轉動軸有所轉動，結果是要逆轉引擎之正常轉向，但好幾多及多咗幾多阻力就答唔到。
18	請講解於上述交通意外中，如果係意外現場，私家小巴 HG 365 引擎著唔著對意外有無影響？	引擎震盪幅度最大是引擎轉速在短時間急速變動時，即是在撻車、熄火或快速踏進油門時，相對引擎在怠速不變時，震幅是穩定及輕微的，相對之影響會較少。但確實所產生之震盪力有多少就答唔到。 而私家小巴 HG 365 之停泊手掣未拉妥，停泊制動系統並非在最良好狀態中運作，有機會因車輛受震盪致使所操作之制動皮與制動鼓不能緊貼，從而影響到原有之制動力。
19	在今次意外中，若私家小巴 HG 365 在停車時把軚盤扭進向左方頂住左邊石壆，能否避免今次意外發生？	若私家小巴 HG 365在今次意外中手掣拉到第五格，而停車時把軚盤扭進向左方頂住左邊石壆，若受到外力影響，當傳動軸及所連接着之尾軸車轆轉動後，私家小巴 HG 365 就會向左邊方向郁動，如貼近左邊路旁路邊石，有可能受馬路路邊石所阻而停下來。
20	在一般情況而言，若一輛大型車輛在一個向下斜坡停泊，是否更需要在泊車時把軚盤扭盡向左方頂住左邊石壆？	在泊車時把軚盤扭盡頂着石壆，目的是即使車輛溜前，也會向左邊路旁方向郁動，不致於沿着斜坡向下溜，因地心吸力而越溜越快，直至撞到固定堅固物才能停低。
21	在今次意外中，你認為 H G 365 司機大力關門會唔會令到車輛溜前造成今次意外？	因停泊制動器未妥善使用，停泊制動系統並非在最良好狀態中運作，以致車輛在斜坡上之停泊狀態容易受諸多因素影響，由大力關門造成的震動會是其中之一。 車輛直接受到碰撞，有外力直接私家於車輛上，有機會令傳動軸之停泊制動器因所操作之威也未被拉扯盡，致使所操作之制動皮與制動鼓不能緊貼。此外，再加上不確定之風力、震盪力等等施加於車輛，致使有外力由車轆同時轉至傳動軸之停泊制動器，以致停泊制動器不能維持原有之制動力。若傳動軸不能被鎖死至完全靜止，所連接着之尾軸車轆開始有轉動，車輛便會因地心吸力而沿着斜坡向下溜。

c)  從上述專家供詞可見，所有問題的前設均是被告人將手掣拉至第 5 格。可是本案中，控方指意外前被告人只將手掣拉至第 4 格。專家指，本案意外的成因是被告人沒有拉妥手掣（見問答 14）；他從來沒指出意外的成因包括沒有「入後波」、「將軚盤向左扭」或「大力關門」等。從問答 16、17 及 19 可見，當小巴向前溜時，「入前波」及「入後波」可產生阻力，但阻力有多大卻不得而知；「將軚盤向左扭」亦會產生阻力，小巴可能會停下來。換言之，專家從沒指「入前波」、「入後波」或「將軚盤向左扭」可防止小巴向前溜（見問答 16、17 及 19）；如被告人拉妥手掣，小巴才不會向前溜；整件事的成因亦是被告人沒有拉妥手掣；

128.基於上述原因，本席裁定兩次檢控均由「相同或大致相同事實」所導致。

本案有否特別或特殊原因繼續檢控

129.辯方指控方未能提供任何特別或特殊的原因繼續檢控（見陳詞第 34 - 51 段）。辯方援引 Phipps 案第 62 至 74 段（見上文）指，控方基於相同或大致相同的事實就同一事件分別作出兩次檢控；主要事實從沒有任何變更，分別之處只是控方獲得新的專家意見，對車速進行了不同的分析。新專家意見參考的證據在控方考慮首次檢控時已存在。換言之，控方是基於相同事實而改變指控立場。英國上訴法庭的結論是兩次檢控之間嚴重程度之差異及該新的專家意見均不構成特別或特殊情況。

130.辯方亦指本案的情況與 Wangige 案極相似；本案兩次檢控之間，主要事實沒有任何改變，而本案中（即第二次檢控），額外的證人沒有提供任何新的主要事實。新增證人的角色主要包括閉路電視片段的提供者、確認死者身份的人士、護送傷者到醫院的警察、當日在場的警察及醫護人員。他們只是補充了有關死者的背景資料、當日現場情況及傷者的傷勢進度。兩位專家早於首次檢控前已作出報告。何元宗 先生於死因研訊作供後及本案提出起訴前（2022 年 6 月 15 日及 7 月 19 日）作出補充筆錄供詞，主要解釋他在研訊作供時的答案。同樣地，陶志恆 博士亦於死因研訊作供後及本案提出起訴前（2022 年 6 月10 日）提交他的補充專家報告。兩位專家的報告對他們原有的結論並沒有任何實質性的增補。他們的意見仍然是當時小巴的停泊制動器被拉至第 5 格或第 4 格，未妥善使用制動器阻止小巴的車輪轉動，導致小巴向下滑行。這是控方在首次檢控中唯一的檢控基礎，也是他們在本案檢控中的唯一基礎。

131.大律師指本案本質上是控方於第一次檢控結束後，基於專家就相同證據資料（即主要事實）提供的補充意見，而做了不同的起訴決定。這些專家所分析的證據資料在他們撰寫第一份報告時（於首次檢控前）已經存在。因此，新增證人、證據對意外的起因及經過、小巴停泊制動器的位置等資料並無任何實質性的增補。

132.大律師指本案情況與 Wangige 案極度相似。本案被告同樣曾於裁判法院被定罪，而在死因研訊中途，就着同一次事件被重新檢控更嚴重的罪名，即危險駕駛引致他人死亡及危險駕駛引致他人身體受嚴重傷害。唯一明顯的分別是，於 Wangige 案，警方獲得了新的專家意見，而該專家對速度問題得出了不同的結論，因此決定重新檢控。本案中，這情況並不存在。因此，本案擱置法律程序的原因比 Wangige 案更充分。何先生和陶博士的補充報告對他們原有的結論並沒有任何實質性的增補；他們沒有提出與 2019 年不同或相反的意見，也沒有就任何新的主要是事實，即第一次檢控時不存在的主要事實提出進一步的意見。無論如何，控方參考的證據，包括專家證人依賴的主要事實及他們的意見、新增的證人供詞，均在控方考慮首次檢控時已經存在。再者，警方早已於 2019 年 5 月 10 日，已涉嫌「危險駕駛引致他人死亡」、「危險駕駛引致他人身體受嚴重傷害」及「沒有固定汽車制動器材離開車輛」罪名拘捕被告人。控方必定是全面考慮全部證據及經深思熟慮後才最後決定於 2019 年 6 月 10 日只以傳票控告被告人「沒有固定汽車制動器材離開車輛」罪。此外，被告人已在傳票案件中承認該案控罪及案情。兩次檢控的事實相同，被告人於首次檢控時承認的案情將不公平地損害他於本案中的抗辯；被告人不能於本案審訊中挑戰或推翻他以於首次檢控中承認的事實。

133.大律師援引 Wangige 案第 74 段指，兩次檢控的控罪的嚴重程度存在極大差異，並不構成特殊情況。大律師亦指，控方一直拒絕向辯方提供第二次檢控的理由。可是， 2022 年 5 月 11 日，何先生和陶博士於死因研訊作供後，死者家屬質疑為何控方沒有起訴被告人更嚴重的控罪。控方遂於 2022 年 6 月 16 日以審視證據為由，申請押後死因研訊。結果於 2022 年 9 月重新逮捕被告人，並以更嚴重的罪名作出檢控。在律政司沒有提供任何理由的情況下，辯方認為律政司可能受到死者家屬的壓力才改變主意，進行第二次檢控。

134.控方則指：

「4.…

(3)  即使法庭認為，該傳票及危駕控罪乃基於相同或大致相同的事實，本案仍具備相當的特別或特殊情況（special or exceptional circumstances），足以支持危駕審訊程序的進行，及

(4)  對被告人公平起見，控方進一步陳詞，繼續危駕控罪審訊，對被告人不構成重大不公，亦符合公義及公眾利益。…

31.  上段 22(6)-(9)  羅列 Alexander 案就議題二的分析。控方陳詞， 相同的考慮適用於本案：-

(1)  承上段 26 所述，危駕控罪的主要事實，包括被告人沒有入後波及將車胎扭向左邊石壆。控方必須倚賴汽車技術 / 專家的證據，才能證明這些作為 / 不作為，與是次意外的發生、及其引致的重大傷亡，有直接及關鍵的關係。除外，控方亦邀請法庭以被告人為職業校巴司機的身份，考慮他在本案犯下種種的錯失，是否足以構成法律下的「危險駕駛」；

a)   上述各點的技術 / 專家證據，在該傳票檢控時並不存在，缺乏上述的證據，該傳票發出的時候，控方根本沒有足夠證據，控告被告人危險駕駛。只要仔細參閱案件文件冊及對比其內容可知，相關的專家證人，於該傳票前作出的證人供詞（ 2019年），只就拉手掣的事宜提供了專家意見。控方其實沒有確切證據證明，該校巴意外時的其他狀態 / 被告人的行為，與意外有直接的關係；

b)  正如就本意外召開的死因聆訊過程中亦有提到，控方其時並沒有與入波等相關的專家證據；

c)  及至死因聆訊被押後，於 2022 年，相關專家證人才首次就入後波及扭車胎等事項提供專家 / 技術性意見：有證人甚至是在該傳票後，才首次作供。這些新的證詞，並非如 Wangige 案對相同的證據作出第二次演繹，相關新證據，對控方危駕案情，亦絕對有重大及實質性的增補。辯方陳詞第 34-42 段的說法，控方不敢苟同；

(2)  不論警方 / 控方在發出該傳票時，均沒有向被告人作出任何承諾，不會對他作出其他檢控；

(3)  就本案的事實證據而言，誠如辯方大律師於陳詞第 35 段公允指出，該小巴溜前及撞死（傷）途人的過程，差不多全部已由閉路電視及行車紀錄儀紀錄下來，李大律師甚至認為，對於案發當日所發生的事實，「根本不可能有爭議」。而被告人當年在該傳票承認的事實重點，亦不過限於他事實上沒有將手掣拉盡及和車輛其時沒有「入波」。

a)   相關的案情撮要，沒有提及證據直接指稱，沒有將手掣拉盡及和車輛其時沒有「入波」，與意外及傷亡有什麼關係，被告人於案情撮要沒有承認，自己沒有將車胎扭向石壆，他亦沒有承認，他在意外發生時正在駕駛，遑論他其時正在危險駕駛。這些被告人從沒有承認的事項，正是危駕控罪的核心。在此情況下，控方看不到辯方陳詞第 45 段聲稱，被告人將不能在危駕控罪審訊（如有的話）中公平地抗辯，及

b)  控方同時留意到，被告人在 2023 年 2 月 21 日、4 月 18 日及 6 月 29 日的提訊日，向法庭申請押後的理由，乃要獲取辯方專家證據；

(4)  承上述，控方不依賴亦不需依賴被告人於該傳票承認的事實，以支持危駕控罪的審訊。撇除所有涉及該傳票程序的招認及定罪，本案的控方證據從來充分，支持其案情。被告人至今仍未能合理地指出，該傳票的定罪對他在危駕控罪的抗辯中，有任何實際的不公或制肘：-

a)  正如 R v Hartnett 案 [2003] EWCA Crim 345…的情況，除卻上訴人再第一次檢控次檢（於該案為醉酒駕駛）的定罪，該案亦有充分及額外的證據，就危險駕駛控罪，向上訴人提出第二次告發。本案亦不存在 Hartnett 案提到的例子（R v Forest of Dean Justices, Ex p Farley），即控方試圖以第一次檢控的定罪，作為第二次檢控的舉證基礎，從而顛倒控辯雙方的舉證責任 ；參見判詞第 11 段；

b)  再退一步說，即使法庭在危駕控罪審訊時，認為應更謹慎起見保障被告人，亦可運用普通法下的酌情權，剔除對被告人不公的證據：Secretary for Justice v Lam Tat Ming & Another 案（2000）3 HKCFAR 168…判辭第 178J - 179F 段，及

c)   法庭就危駕控罪作出判處時（如適用的話），亦可按總體量刑原則（totality principle），就案情及被告人特殊的情況，判處合適的刑罰：參見 Hamer 案…判辭第 18 段。

32.其實，即使於辯方援引的 Wangige 案…，上訴法庭雖然推翻了第二次檢控的定罪，其判辭亦清楚指出，控方就同一案件獲得進一步專家證據，有可能構成特別情況以支持第二次檢控。每件案件必須按照其獨特案情考慮，不能搬至過紙，一概而論；參見判辭第 81  段。」

135.本席不同意控方的說法。控方將「事實證供」（Factual Evidence）和「專家證供」（Expert evidence）混為一談（見陳詞第 31(1)  段）。早於首次檢控之前，控方已知悉：

a)  被告人是商用車的職業司機；

b)  因此，被告人入職前應曾接受駕駛安全相關的課程；

c)  被告人駕駛的是重型車輛；

d)  案發當日，被告人是小巴的司機；

e)  被告人將小巴停在斜坡上；

f)  停車位置鄰近學校及繁忙的路段；

g)  被告人沒有拉妥手掣；

h)  被告人沒有「入後波」（見傳票案件案情撮要第 8 段）；

i)  被告人將車匙留在開車匙孔內（見傳票案件案情撮要第 9 段）；

j)  警方亦獲取不同的錄影片段，知悉被告人在停泊小巴時沒有將軚盤扭左。專家亦是依靠該些片段作出新的報告；

k)  被告人上述的作為 / 不作為（包括停車的方式）均為被告人駕駛的一部分；

l)  意外引致多人死亡及重傷。

136.案發時，兩位專家並不在場。兩位專家是根據案發的事實提供意見（Opinion Evidence）。無可爭議的是，兩次檢控之間，事實證供並無任何增補或改變。

137.明顯地，本案兩次檢控之間，事實證供沒有任何改變；唯一不同的是控方要求專家審視早已存在的事實提供進一步意見，而這並不構成特別或特殊情況（見 Phipps 案第 69 段）。

138.本席不同意首次檢控前，控方沒有足夠證供作出「危險駕駛引致他人死亡」及「危險駕駛引致他人身體受嚴重傷害」的檢控（見陳詞第 31(1)(a) 段）。上述事實證供已顯示被告人將重型車輛停泊在斜坡上，而沒有拉好手掣，引致多人傷亡。這些事實證供已足以就本案控罪作出檢控。本席明白控方有責任持續地檢視檢控決定。但控方必須於首次檢控或最遲於首次檢控前履行該責任。尤其是兩次檢控的罪責及罰則有嚴重差異，控方更應於首次檢控或最遲於首次檢控完結前，小心嚴謹地考慮作出適當的控罪。況且，根據案例，兩次檢控控罪的罪責有嚴重差異，並不構成特別或特殊情況（見 Phipps 案）。

139.控方承認首次檢控前曾考慮有否足夠證供以「危險駕駛引致他人死亡」及「危險駕駛引致他人身體受嚴重傷害」，但當時認為沒有足夠證供作出起訴。如該說法屬實，控方便應在首次檢控之前，或最遲於首次檢控完結前要求專家審視事實證供及提供進一步意見。如事實證供沒有變更，新的專家報告不構成特別或特殊情況（見 Phipps 案第 74-79 段）。

140.控方指無論警方或控方在發出傳票時，均沒有向被告人作出任何承諾，不會對他作出其他檢控（見陳詞第 31(2) 段）。普通法下，控方有責任於首次檢控之前，或最遲於首次檢控完結前，作出適當的檢控決定；除非有特別或特殊情況，否則不可在被告人被裁定有罪或無罪之後再以更嚴重控罪作檢控（見Connelly 案、Beedie 案及 Wangige 案）。本案中，無論於被告人首次被檢控或該檢控完結之前，控方沒有控以本案的控罪。事實上，一般而言，死因研訊是於所有刑事檢控程序完結後才會展開。控方亦從沒否認於死因研訊前完全沒意圖再作檢控。這已表明不會再作起訴。死因研訊期間，控方就檢控決定受到死傷者家屬質疑後才向何先生和陶博士索取進一步意見，改變原有的檢控決定。控方的錯誤或疏忽均不構成特別或特殊原因（見 Phipps 案）。

141.控方指辯方承認案發情況差不多全部被攝錄，因此案發當日所發生的事實「根本不可能有爭議」（見陳詞第 31(3)  段）。如上文所述，根據案例，有證供顯示被告人危險駕駛並非特別或特殊的情況（見 Phipps 案及 Beedie 案）。

142.控方續指，於傳票案件中的事實，重點只限於被告人沒有將手掣拉盡及「入波」（見陳詞第 31(3)(a) 段）。被告人沒有直接承認該些作為 / 不作為引致意外及傷亡，也沒承認沒有將軚盤向左扭或被告人是小巴的司機。這簡直是強詞奪理。於傳票案件中被告人承認他將小巴停泊在案發地點（見傳票案件案情撮要第 1 段），沒有拉好手掣或「入波」（見傳票案件案情撮要第 8 段），結果小巴向下滑造成嚴重傷亡（見傳票案件案情撮要第 2 -12 段）。傳票案件中，小巴的車主亦確認案發時，被告人是小巴的司機（見傳票案件案情撮要第 14 段）。傳票案件中被告人亦承認了死傷者的傷勢及所有警方獲取的攝錄片段（見傳票案件案情撮要第 11-12 段）。控方是從該些攝錄片段獲悉被告人沒有將軚盤向左扭。

143.控方指被告人於提訊期間分別三次要求押後，理由是索取專家證據（見陳詞第 31(3)(b) 段）。就算被告人打算申請擱置程序也須作兩手準備；無論結果如何，大律師也需全面考慮證供才可向被告人提供適切的專業意見；萬一法庭駁回申請，辯方也須準備審訊。

144.控方指不依賴亦不需依賴被告人於傳票案件中承認的事實，以支持危駕控罪的審訊。這陳詞令人咋舌：

(1)  無可爭議的是，被告人於傳票案件中已承認整件案的案發經過。如控方不依賴這些事實證供，根本沒有任何證供作出第二次起訴；

(2)  比較兩次檢控的案情撮要，控方的指控基本上大致相同；

(3)  專家是根據事實證供提供意見。換言之，沒有事實證供，專家亦無法提供意見。

145.控方似乎是指無須依賴傳票案件中被告人的定罪，證明第二次檢控的控罪（見陳詞第 31(4) 段）：

「…撇除所有涉及該傳票程序的招認及定罪，本案的控方證據從來充分，支持其案情…」

146.控方援引 Harnett 案 [2003] EWCA Crim 345:

(1)  該案中，一名警員看見上訴人駕駛一輛私家車，車速時快時慢；被告人曾以右手掩頭、數次差不多撞到石壆、曾駛向迎面而至的車輛、曾於路口兩度退後，並於迴旋處突然切線令一輛貨車急煞。上訴人如此駕駛三英里後才將私家車停下，躺在軚盤上。上訴人被拘捕，酒精測試顯示被告人體內的酒精超標。被告人承認不應駕駛、駕駛期間使用無線電話。上訴人被控以一項「酒後駕駛」（簡易罪行）。上訴人沒有出席於 Southampton 裁判處的提訊。當時控方檢閱證供後，決定加控一項「危險駕駛」。當時辯方表示上訴人會承認「酒後駕駛」；律師承諾會就「危險駕駛」控罪索取指示。案件再次提訊時，裁判官指「危險駕駛」可以簡易程序或公訴，拒絕審理。結果，上訴人承認「酒後駕駛」，而「危險駕駛」交付予上級法院的程序則被押後。交付程序聆訊當日，裁判官將「危險駕駛」的審訊及「酒後駕駛」的判刑交付予上級法院。之後，上訴人於「危險駕駛」提訊時表示不認罪；辯方亦指被告人承認「酒後駕駛」後，控以「危險駕駛」是濫用程序及違反「免受雙重損害」原則。辯方的說法被駁回後，上訴人便承認「危險駕駛」。之後，上級法院就兩項控罪判刑。上訴人提出上訴，指「危險駕駛」控罪濫用程序及違反「免受雙重損害」的原則。

(2)  上訴法院指：

“8.  On 17 July the appellant was committed for trial for the dangerous driving and for sentence on the excess alcohol.  That was a wrong decision of the magistrates.  It was something that they had no jurisdiction to do.  As the offence was a summary offence and not an offence triable either way, it was not a case in which they had power to commit the appellant for sentence in relation to the excess alcohol offence.…

9.  …Because the Crown Court had no jurisdiction to deal with the question of sentence in respect of the excess alcohol offence, the sentence for that offence was unlawful…

10.  Mr Gau, who has appeared on behalf of the appellant, in support of his abuse of process and double jeopardy contentions relies on a decision of the Divisional Court in R (on the application of Farley)  v Forest of Dean Justices [1990] RTR 228.  The facts of that case bear a superficial resemblance to those in this case.  The headnote reads:

“The applicant, who had consumed alcohol, drove a vehicle on a road, failed to negotiate a bend, the vehicle overturned and a passenger was killed.  Before communicating with the police he had, he claimed, consumed alcohol after the accident; he provided specimens of breath for analysis which revealed breath-alcohol below the prescribed limit and back-calculation produced a figure in excess of the prescribed limit at the time of driving, with no account taken of any post-driving alcohol consumption.  He was arrested for causing death by reckless driving, contrary to section 1 of the Road Traffic Act 1972, as substituted.  He appeared before justice on a charge of driving with excess breath-alcohol, contrary to section 6(1)  of the Act of 1972 … He applied for an adjournment of the hearing until disposal, one way or another, of the charge under section 1.  The prosecution resisted the application on the basis that they wished to proceed with the summary offence under section 6(1)  in order to establish that the applicant was driving with excess alcohol, so that the burden lay on him of proving post-driving alcohol consumption to negative the assumption under section 10(1)  that the breath-alcohol analysis and back calculation established that the proportion at the time of the alleged offence was not less than in the specimen; and that the only evidence of reckless driving was the alleged excess alcohol.  The justices refused the application and decided that the hearing against the applicant under section 6(1)  should proceed.…

On the applicant’s application for judicial review of the justices’ decision:

Held, granting the application but making no order on the prosecution's undertaking not to proceed with the charge under section 6(1)  until the charge under section 1 had been determined, (1)  … that the reversal of the burden of proof involved in the procedure proposed by the Crown was a 'manipulation or misuse of the process of the court so as to deprive the defendant of a protection provided by the law,”…; that on the particular facts of the case where excess alcohol was the only foundation for recklessness, and where there could be no dispute about the cause of death, it would have been an abuse of the process of the court to have proceeded in the manner proposed by the prosecution…

(2)  That the applicant would be put in double jeopardy … by an indictment for reckless driving following a summary conviction for excess alcohol, which would be contrary to the principle that a series of charges should not be preferred and whether a party accused of a minor offence was acquitted or convicted, he should not be charged again on the same facts in a more aggravated form … ; that it would be oppressive to proceed on indictment after summary trial on the lesser charge and the court in its discretion should grant a stay….

(3)  …that it would be unfair for the applicant to have to face the very serious charge of causing death by reckless driving in circumstances where the burden of proof on the central issue of reckless driving would in effect be placed on him … ; that there was such a close link between the issues in the summary proceedings and the issues which were likely to be crucial in any proceedings for causing death by reckless driving that the court should act…

In the course of his judgment Garland J said:

“The situation that eventually emerged, and which has been made abundantly clear by the prosecution throughout, is as follows.  The prosecution wish to proceed with the excess alcohol summary offence in order to establish that the applicant was driving with excess alcohol.  If they succeed, they will then proceed with the charge of causing death by reckless driving, the recklessness being established by the excess alcohol.  The conviction can be put in evidence in the reckless driving proceedings by virtue of section 74(3)  of the Police and Criminal Evidence Act 1984.  The conviction will also be evidence of the facts on which it was based unless the applicant proves to the contrary.  The prosecution's reasons for proceeding in this way are frankly disclosed in the affidavit of the Senior Crown Prosecutor: in the magistrates' court the burden of proving the subsequent consumption of alcohol, so as to undermine the validity of the back calculation lies on the accused.  This is by virtue of section 10(2)  of the Road Traffic Act 1972 …, which was the statutory provision in force at the time.  Accordingly, the combined effect of this provision and section 74(3)  of the Police and Criminal Evidence Act would transfer to the applicant the burden of establishing his defence.

It is common ground that the excess alcohol is, on the particular facts of this case, the only foundation for an allegation of recklessness .  .  .  (2)  On the facts of this case, since excess alcohol is the foundation of the recklessness and the only additional element required to establish the indictable offence is that the reckless driving caused the death, this is in substance a case of double jeopardy transgressing an accepted principle that offences should be prosecuted in decreasing order of magnitude, the only exception being where death within a year and a day of the assault occurs after a conviction for assault or wounding…

…(ii)  Developing his defence in the summary trial would not only reveal what it was but enable the prosecution to meet it by making further enquiries and calling, as additional evidence, that which would in substance be evidence in rebuttal.  (iii)  The applicant, by being obliged to give evidence, would lay himself open to damaging cross-examination were there to be any inconsistency in his evidence at the trial in the Crown Court….”

11.  We well understand the reasoning of the court in Ex parte Farley.  However, with great respect to the argument which was advanced by Mr Gau, in our judgment the position in that case is clearly and obviously distinct from the case which is before this court today.  In Ex parte Farley there was no question of there being clear evidence of dangerous driving quite apart from the drink.  Secondly, unlike Ex parte Farley, there was no question of the prosecution adopting any stratagem to obtain evidence in the course of the proceedings in respect of the drink so that that evidence could be used in the subsequent trial of the driving offence.  The position was that the prosecution were going to rely on the appellant's plea of guilty to the excess alcohol offence, if they were allowed to do so by the court, in the trial of the driving offence.  However, there was no trial of the driving offence because the appellant pleaded guilty to it.  If there was any unfairness involved in what had occurred in the history because of the appellant pleading guilty to the alcohol offence in the magistrates' court, that could perfectly appropriately have been dealt with by the trial judge…”（強調後加）

147.首先，於 Harnett 案中，控方是一次過就兩項控罪提出檢控；當時，「醉酒駕駛」只可以簡易程序處理，而「危險駕駛」則可以簡易程序或公訴程序處理。控方本希望兩項均由裁判官處理，但比裁判官拒絕審理「危險駕駛」，該控罪才交付予上給法庭。該案的情況與本案的情況截然不同。本案中，控方在首次檢控完成後才再次作出檢控，完全違反 Ex parte Farley 案所述的基本原則 。控同意被告人於傳票案件中已承認控罪及同意所有事實。於本案的兩次檢控前，被告人完全沒有作出招認（見傳票案件案情撮要第 13 及 15 段）。控方卻只談及被告人的定罪，明顯是顧左右而言他，迴避辯方的說法。

148.控方指法庭可採納 Secretary for Justice v Lam Tat Ming & Another 案 (2000)  3 HKCFAR 168 的做法，運用酌情權剔除對被告人不公的證據（見陳詞第 31(4)(b)  段）。該案並不涉及「免受雙重損害」的原則；而是關乎法庭可否接納上訴人的招認。該案的論點為（見 Headnote）：

“Ds were charged with various corruption offences.  After the alleged offences were completed, the Independent Commission Against Corruption (ICAC)  mounted a successful undercover operation to obtain confessions from them.  The operation involved a police informant and an ICAC officer acting out triad roles.  At issue before the Court of Final Appeal was the scope of the residual discretion to exclude a voluntary confession, where it was obtained by a law enforcement agency in an undercover operation.  The Court of Final Appeal also took the opportunity to consider the general principles relating to the admissibility of a confession.”

149.該案的論點與本案完全不同。況且，於傳票案件中，被告人已承認整個案發過程的事實。如法庭剔除被告人承認的事實，控方根本沒有證供支持本案的檢控；專家亦沒有事實基礎提供意見。

150.控方續指「法庭就危駕控罪作出判處時（如適用的話），亦可按總體量刑原則（totality principle），就案情及被告人特殊的情況，判處合適的刑罰：參見 Hamer 案…判辭第 18 段」。如本案第二次檢控違反「免受雙重損害」原則，控方又無法提出特別或特殊的情況，法庭的責任是下令永久擱置本案的控罪，而非考慮總刑期原則或輕判。

151.控方亦指就算是 Wangige 案，上訴法庭雖然推翻了第二次檢控的定罪，其判詞亦清楚指出，控方就同一案件獲得進一步專家證據，有可能構成特別情況以支持第二次檢控（判辭第 81 段）。

152.本席同意於 Wangige 案，上訴法庭指他們並非概括地裁定新的專家證供或其他證供永遠不能構成特別或特殊的情況，但要看案情而定。可是本案的情況與 Wangige 案相似：基本事實沒有改變，只是專家根據早已知悉的事實有增補或改變。上訴法庭已於該案裁定，這並不構成特別或特殊情況。

153.控方援引 Govorusa 案和 R v Gore [2009] 1 WLR 2454，指：

「33.  於 Govorusa 案…，上訴人先後被控告管有危險藥物及串謀販運危險藥物。上訴法院在拒絕擱置串謀罪的定罪時，留意到在首次檢控（管有危險藥物罪）前，已經有證據支持警方（就串謀販運藥物）拘捕上訴人。儘管如此，其時的證據，並不足以支持串謀罪的檢控：參見判辭第 11 段。

34.  相似地，在 R v Gore 案 …，上訴人就同一宗肢體糾紛，先被票控行為不檢，警方經檢視（在票控時已然存在）閉路電視證物及調查受害人的傷勢後，決定再控告襲擊導致他人身體嚴重傷害罪。上訴法院認為，即使票控及襲擊罪源自相同的事件，警方在決定票控上訴人士，還沒垂詢所有證據（包括檢視閉路電視片段及進一步調查受害人的傷勢），故控方未曾知悉所有事實（”all the facts”），亦未有充分的證據基礎控告襲擊罪。警方在票控上訴人時亦從未表示，不會就該事件對他進行進一步檢控。法庭形容，控方在獲得新證據後作出相稱的檢控決定，符合公義，並不屬濫用程序…

控方援引判詞第 16 段及要求法庭參閱第 13-16 段 後指：

「35.  Gore 案的裁斷，亦經 Alexander 案…考慮及確認：參見後者判詞第 656H 及 662B 段。

36.  綜合上述，控方謹陳詞，即使案件的事實在案發時已經發生，但足以導致危駕控罪的重要新證據，乃在該傳票後才被控方獲得，這足以構成特別情況，支持法庭拒絕行使酌情權擱置危駕控罪。控方重申，本案不涉及控方改變就舊有的專家證據的立場。控方所作（及應作）的是，適時審視證據，並在不違反相關法律原則下，適時作出相應的檢控，為各死傷者討回公道。誠如樞密院於 Humphrys 案提醒，即使被告人或法庭認為檢控有商榷的地方，亦非擱置程序的理由。」

154.本席於上文已處理控方就 Govorusa 案的陳述，現不再重複。Gore 案的情況如下（見 Headnote）：

“Police officers went to the scene of a late night disturbance in Liverpool city centre where they found a young man who had a cut to his face and was complaining of a sore arm.  The officers did not appreciate that the young man had, in fact, suffered a fracture to his elbow.  The two appellants were detained nearby.  The first appellant admitted to being involved in an altercation in a public place while he was drunk and a fixed penalty notice, pursuant to section 2 of the Criminal Justice and Police Act 20011, was issued to him for that offence.  A similar notice for an offence of behaviour likely to cause harassment, alarm or distress was issued to the second appellant.  The following day the police reviewed the CCTV evidence and decided that the fixed penalty notices were inappropriate.  The appellants were subsequently charged with inflicting grievous bodily harm on the young man.  The appellants’ applications to stay the indictment as an abuse of process on the basis that the prosecutions arose from the identical conduct for which they had received fixed penalty notices were refused by the judge.  The first appellant then pleaded guilty and the second appellant was convicted.  The appellants appealed against conviction.

155.上訴法庭指：

“7.  The appeals against conviction are founded on the proposition that the refusal to stay the indictment against the appellants as an abuse of process was wrong in law.  The argument arises from the issue of the fixed penalty notice for disorder by the police at the scene for what is said to be the identical conduct for which the appellants were prosecuted before the Crown Court.  In light of the relevant provisions of the 2001 Act, and the linked statutory guidelines as well as the analogous case law, the criminal proceedings are unfair and therefore constitute an abuse of process.

8.  The principle against sequential trials, or a series of trials which would have the effect of punishing a man twice for an offence arising out of the same or substantially the same fact, is well understood: see R v Elrington …, as explained in Connelly…; R v Beedie… It is equally well understood that where a defendant has been given an unequivocal assurance that he will not be prosecuted and has acted on that assurance to his disadvantage, that, too, may found an abuse of process argument.….  Both principles are said to be engaged.

9.  Section 2(4)  of the 2001 Act defines a penalty notice.  It means “a notice offering the opportunity, by paying a penalty… to discharge any liability to be convicted of the offence to which the notice relates”.  Thus the notice provides the opportunity to a potential defendant to discharge any possible liability to conviction on payment of the penalty.  The liability is discharged on payment of the penalty.  Section 3(3)(b)  requires the notice to state the alleged offence and (c)  requires particulars of the offence to be given.  Section 5 provides a general restriction on proceedings:

“(1)  Proceedings for the offence to which a penalty notice relates may not be brought until the end of the period of 21 days beginning with the date on which the notice was given (‘the suspended enforcement period’).

(2)  If the penalty is paid before the end of the suspended enforcement period, no proceedings may be brought for the offence.”

For this purpose “proceedings” is a reference to a criminal prosecution.…”

10.  Section 6 permits the Secretary of State to issue guidance about the issuing of penalty notices, and the way in which constables should exercise the discretion to do so … In the context of the “Overview of the scheme” it is stated that “Once an officer has issued a notice, the decision to issue has been made and no alternative should then be considered” … It is further stated, at para 8.4, that:

“Where a penalty notice is issued … and it subsequently comes to light after the incident that a more serious or non-penalty offence was committed on the same occasion, officers may bring a charge for the subsequent offence.  Payment of a penalty discharges the recipient’s liability to conviction only for the offence for which the penalty notice was issued.  Ultimately, it will be for the Crown Prosecution Service to determine, based on the facts of the case, whether a prosecution may be brought, in respect of the subsequent offence, and for the courts to decide whether or not to allow such a prosecution.”

In this context the reference to subsequent offence means a reference to a more serious or non-penalty offence coming to light after the issue of a notice.

11.      The penalty notice scheme provides a useful method for dealing with low level crime, for example, the sort of public disorder which occurs in city centres at night, which is troublesome and anti-social, without involving serious criminality.  Payment of the penalty involves no admission of guilt on the part of the person to whom it is given, nor does it create a criminal record.  These are important limitations.

12.  Mr Lander, on behalf of the appellants, suggested that there was no reason to criticise the police officers for issuing fixed penalty notices.  They had been told about the nature of the incident, and appreciated from the reports made to them that it involved a number of men attacking one man.  Thought was given to whether notices should be issued, and a decision to do so was made after communications with more senior officers.  Mr Lander accepted that none of the officers involved in the process had seen the CCTV material for themselves, and further that none of them was aware of the fact that the victim had suffered a fracture of the elbow.  However, he says that they should have appreciated from the fact that Mr Smith was complaining of a sore arm, that the injury was or should have been treated as a serious one.  In these circumstances it was unfair for the appellants to be prosecuted for the same conduct which had led to the issue of the fixed penalty notices.

13.  The first problem with the submission is that the officers at the scene were acting on the basis of reports to them of an incident, rather than the evidence actually provided by the CCTV.  No complaint of an assault was made to them.  They did not appreciate, and there was no reason why they should have appreciated, the extent of the injury sustained by Mr Smith.  Contrary to Mr Lander’s submission, “all the facts” were not known at the time when the notices were issued.  In short, the evidence to sustain an arrest and possible charge for causing or inflicting grievous bodily harm was very thin.  In fact, as Judge Gilmour found, the suggestion that the police knew that Mr Smith had suffered grievous bodily harm is fanciful.  What is more, if such evidence had been available then a fixed penalty notice would be wholly inappropriate.

14.  There is a further problem.  The notice which was issued undoubtedly arose out of the same incident which was ultimately prosecuted as a serious offence of violence.  The notice received by each appellant did not suggest that he had committed any such offence or that, by paying the penalty, his liability to be convicted of an offence of violence would be discharged.  The physical altercation in a public place to which the notice to Gore referred did not involve an allegation of assault and indeed, at the scene, Gore had suggested that his involvement represented self-defence.  The notice to Maher involved an assertion of anti-social behaviour, again, not assault.  Ignoring the relevant provisions in the guidance issued by the Secretary of State under section 6 of the 2001 Act, there is nothing whatever in the statute which suggests that the issue of a penalty notice asserting one offence, and the payment of the penalty, relieves the recipient of any possible further proceedings if and when it becomes apparent that a more serious and, in particular, a non-penalty offence has in fact been committed.  Nothing in the text, and nothing said at the scene, carries or carried any such implication.  And indeed, as it would seem to us, even if the officers issuing the notice, or those who instructed them to do so, had been fully in possession of all of the facts, it is questionable whether the passages in the guidance referring to “the subsequent offence” would be sufficient to preclude the possibility of further reconsideration of any such decision.  What is abundantly clear is that the terms of the 2001 Act only preclude a prosecution for an offence in relation to which a notice was issued.

15.  Mr Lander drew attention to Jones v Whalley [2007] 1 AC 63, where a private prosecution was brought by the victim against the perpetrator of an assault.  The officer in the case had issued a non-statutory caution, and the offender was not prosecuted.  At the time when the private prosecution began, the caution had not been quashed.  In the House of Lords it was decided that such a prosecution could not be brought while the caution was still in existence.  As Lord Bingham of Cornhill said, at para 13: “so long as that formal caution stood, induced by a representation that he would not be prosecuted, the private prosecution of Mr Whalley did in my opinion amount to an abuse [of process].” It is however significant that, unlike the present case, the subject of the caution and the intended prosecution were for the same offence, that is, assault occasioning actual bodily harm, contrary to section 47 of the Offences against the Person Act 1861.  What is more no representation was made in the present case to these appellants that, if a penalty notice were issued and the penalty paid, they would not then be prosecuted for any other offence.  The conclusion in Jones v Whalley does not apply to the present situation.

16.  There is a great deal of force in the judgment of the Divisional Court in R (Guest)  v Director of Public Prosecutions [2009] 2 Cr App R 426, where the Director of Public Prosecutions was directed to reconsider a decision that a potential defendant should be prosecuted for assault occasioning actual bodily harm, when he had been given an inappropriate conditional caution for the offence.  The court rejected the argument that if the decision not to prosecute and the conditional caution were quashed, any subsequent prosecution would fail on abuse of process grounds.  As Goldring LJ explained at paras 51–52:

“Criminal litigation is not a game … It does not seem to me that … a further prosecution would necessarily amount to an affront to public justice … Indeed, many might think that what so far has happened deserves that description.”

Naturally, and indeed we emphasise, decisions in this type of case involve the application of well understood principles to fact-specific situations.  There was here no improper escalation of charge, nor any departure from any reasonable expectation that either appellant would not be prosecuted, if any more serious consequences of their conduct, and evidence justifying prosecution for an offence of violence came to light after the issue of the notice.  The reality is that on the night in question the appellants must have been thanking their lucky stars that they got away with the serious violence they had perpetrated.  It was not an abuse of process for justice to catch up with them.”

156.顯而易見，上述案例的情況與本案截然不同。首先，根據上訴法庭的判詞，英國有關法例訂明，如警方向犯罪人發出定額罰款票控，警方必須清楚說明與票控有關的控罪；犯案人支付罰款後，警方便不可再就有關票控的控罪提出檢控。可是，犯案人支付罰款不涉及承認有罪，亦不會留下刑事紀錄。法例亦清楚訂明，如警方發出票控後發現犯案人干犯其他更嚴重及非罰款控罪，警方認可就後來發現的控罪作出檢控。該案例是傳譯上述法例的裁決。況且，與本案不同，該案警方發出票控時並不知悉所有事實證供；他們沒有看過閉路電視片段，亦不知道受害人手部骨折，因此沒有足夠證供控告上訴人襲擊導致他人嚴重受傷。該案中，上訴法庭亦質疑，後來的檢控是否法例所指 “subsequent offence” 的定義。本案不涉及類似的法例；控方亦於首次檢控前獲悉所有事實證據；新的專家證供亦是基於早已知悉的事實。

157.本席裁定，本案中控方不能提出任何特別或特殊情況，繼續第二次的檢控。

控方的其他陳述

158.控方於其陳詞第 37 至 39 段指危駕控罪的審訊，對被告人不會構成重大不公，亦符合公義及公眾利益。控方指撇除控方濫用程序的指稱，本案沒有其他情況足以讓法庭擱置危駕控罪。本案中控方獲得新的專家報告後便立即落案起訴被告人，沒有拖延。辯方亦沒有指稱第二次檢控出於惡意（bad faith）。法庭席前亦沒有任何證據顯示，被告人將不可能獲得公平審訊，及/或相關不公的地方，不能經法庭程序作出相應補救。辯方提出的指示空泛而推測的問題，沒有實質證據支持。根據 Humphrys 案，法庭作為公義的守護者，除要維護被告人公平審訊的權益，亦須顧及控方提控的權利，及受害者和公眾的利益（亦見 R v LG [2018] EWCA Crim 736）。

159.本席明白當辯方去信控方時曾提及延誤及被告人不能獲得公平審訊等問題。可是，這並非本案的申請。因此，本席不打算作處理。

結論

160.本案的兩次檢控均由「相同或大致相同事實」導致，控方亦無法證明有特別或特殊的情況繼續該檢控；因此第二次的檢控違反「免受雙重損害」原則。因本案違反「免受雙重損害」的原則，《香港人權法案》第 11(6)  款適用，本席必須下令永久擱置本案的程序，權力並非酌情性質。就算《香港人權法案》不適用，本席也根據普通法，運用酌情權，下令永久擱置本案的程序。

跋文

161.本案中，控方不但不斷地將「一罪兩審」及「免受雙重損害」的原則及測試混淆，援引明顯地完全無關或不適用的案例，還向法庭聲稱案例的「跋文」和「附錄意見」為案件的判決，有誤導法庭之虞。誤導法庭是嚴重違反專業操守的行為。另外，控方對辯方大律師的批評，用了極之冒犯及嚴厲的用語，例如屢次指稱辯方「混淆視聽」，這些批評全無基礎。其實是控方陳詞完全違反所有有關的法律原則，控方的行為並不合適。

附件1

事發時序

日期	事件
10.12.2018	意外發生
	何玉珍在現場被證實死亡
	梁洪、陳瑞意及楊文根在送到醫院後被證實死亡
12.12.2018	何元宗先生（PW51）於鰂魚涌車輛扣留及檢驗中心檢查小巴
17.12.2018	汽車檢驗主任意外報告
8.1.2019	葉慶華被證實死亡
29.1.2019	警方就一項「沒有固定汽車制動器材離開車輛」罪向被告人錄取警誡供詞
21.3.2019	何元宗先生的第一份報告
6.5.2019	陶志恒博士（PW52）的第一份報告
10.5.2019	警方以涉嫌 5 項「危險駕駛引致他人死亡」罪、2 項「危險駕駛引致他人身體受嚴重傷害」罪，及 1 項「沒有固定汽車制動器材離開車輛」罪拘捕被告人
	警方就5 項「危險駕駛導致他人死亡」罪、2 項「危險駕駛導致他人身體受嚴重傷害」罪及1 項「沒有固定汽車制動器材離開車輛」罪向被告人錄取警誡供詞
	被告人就5 項「危險駕駛導致他人死亡」罪、2 項「危險駕駛導致他人身體受嚴重傷害」罪及1 項「沒有固定汽車制動器材離開車輛」罪進行3 次錄影會面
20.5.2019	何元宗先生的第二份報告
10.6.2019	控方就「沒有固定汽車制動器材離開車輛」罪發出傳票 ESS 20488/2019
26.8.2019	被告人認罪書函
9.9.2019	被告人就傳票被定罪及罰款 2,000 元
4.5.2022	死因研訊開始
11.5.2022	何元宗先生及陶志恒博士於死因研訊中作供
10.6.2022	陶志恒博士的第二份報告
15.6.2022	何元宗先生的第三份報告
16.6.2022	由於律政司申請覆核案件，死因研訊被押後
19.7.2022	何元宗先生的第四份報告
14.9.2022	警方就 5 項「危險駕駛導致他人死亡」罪及 2 項「危險駕駛導致他人身體受嚴重傷害」罪向被告人錄取警誡供詞
	警方就5 項「危險駕駛導致他人死亡」罪及2 項「危險駕駛導致他人身體受嚴重傷害」罪向被告人進行錄影會面
	被告人被控5 項「危險駕駛導致他人死亡」罪及2 項「危險駕駛導致他人身體受嚴重傷害」罪
15.9.2022	被告人於東區裁判法院提訊
6.12.2022	律政司起訴被告人 1 項「危險駕駛導致他人死亡」罪及 1 項「危險駕駛導致他人身體受嚴重傷害」罪
23.12.2022	事實摘要
29.12.2022	被告人第一次於區域法院提訊
21.2.2023	被告人第二次於區域法院提訊
12.6.2023	被告人代表大律師向律政司致函，提出一罪兩審的問題，並要求律政司提供在 2022 年控告被告人更嚴重罪行的原因
18.4.2023	被告人第三次於區域法院提訊
28.6.2023	律政司沒有提供有關原因
29.6.2023	被告人第四次於區域法院提訊
24.9.2023	被告人第五次於區域法院提訊
5.10.2023	被告人第六次於區域法院提訊
22.7.2024	擱置法律程序的聆訊日期