Au Pui-kuen v. The Queen

CACC001028/1976

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Coram: Briggs, C.J., Huggins and Pickering, JJ.A.

Date of Judgment: 3rd February 1977

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JUDGMENT

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Huggins, J.A.:

1. On 21st January we allowed the Appellant's appeal against his conviction and pronounced in open court that there should be a new trial. Counsel now moves us to reconsider the question whether there should be a new trial and the first matter to be decided is whether we have jurisdiction to entertain such an application. It is conceded that as regards the substantive appeal we are functus officio, but the argument is that an order for a new trial is not perfected until it has been communicated to the court of trial. The same point arose in England in Reg. v Cross 1973 1.Q.B. 937, but the case is distinguishable in two ways. First, in England a new trial must be held in the same court as that in which the first trial was held: in Hong Kong the new trial is held

"before such court as the Court of Appeal may direct (being the High Court or, if the offence is with in the jurisdiction of the District Court, the District Court) or, if no such direction is given, before the court by which he was originally tried". (Section 83F of the Criminal Procedure Ordinance).

Secondly, in England the Criminal Appeal Rules expressly require that the order be transmitted to the court of trial, whereas we have no such provision. We have been referred to s. 83(3) of the Criminal Procedure Ordinance, which is in these terms:

"An order of the Court of Appeal quashing a conviction shall, except when under section 83E the appellant is ordered to be retried, operate as a direction to the court of trial to enter, instead of the record of conviction, a judgment and verdict of acquittal."

Mr. Jackson-Lipkin submits that it is implicit that, to give effect to the exception, the court of trial must be given notice of the order and that the order cannot have been perfected until such notice has been given. In the majority of cases the court of trial will hold the new trial, but where the new trial is to be held before another court one would have thought that it was equally important that that court should be given notice, although no requirement apparently exists as to this. Section 83F further provides that any new trial shall be "on a fresh indictment preferred by direction of the Court of Appeal", but Mr. Penlington argues that this is a purely procedural matter and it has not been contended that service of a direction on the Attorney General is a necessary step in the perfection of the order. However, we agree that a notice to the court of trial is necessary and as no such notice has yet been given, the notice having been withheld when the present application was set down for hearing, we have jurisdiction to reconsider the question whether an order ought to be made.

2. It remains to be decided whether we ought to exercise that jurisdiction. As to this Mr. Jackson-Lipkin says first that no order for a new trial ought to have been made because the court did not give proper consideration to the whole of the evidence. Indeed, he goes further and says that because all the evidence was not considered on the hearing of the appeal that precluded any order for a new trial. What happened was that we heard full argument on only one point on the appeal, a point of law, and came to the conclusion that the appeal must be allowed on that point. It therefore became unnecessary to hear counsel on the grounds of appeal which complained that the evidence was unsatisfactory. Instead we went on to hear argument on the issue of a new trial. Counsel for the Appellant did draw attention to the fact that we had not heard all the arguments he would have advanced on the appeal had the matter taken a different course and in particular he mentioned that the evidence was contradictory. He did not, however, deal with his criticisms of the evidence in detail, apparently thinking that it was not open to us to conduct such an enquiry and that, even if it was, he should not do so unless we asked him. There may have been some misunderstanding here and we have no wish to blame counsel for what occurred. At the same time we cannot accept that the mere fact that the evidence has not been considered in detail on the hearing of an appeal prevents a subsequent consideration of the evidence or that it is incumbent on the court to tell counsel what matters he should put before the court in relation to the issue whether there should be a new trial. We did not understand that counsel was waiting for an indication from us that he should, if he thought it necessary, address us fully on the evidence and we assumed that he had said all that he wished to say. If our understanding was correct we were, in our view, justified in making our decision, for what has to be given proper consideration is such of the evidence as counsel thinks it appropriate to draw to our attention: we cannot be required to go away and read all the evidence for ourselves. The learned judge had drawn the attention of the jury to various inconsistencies in the evidence and of those we were aware when we made our order. Counsel wishes now to draw our attention to other inconsistencies and we are reluctant to insist that it is too late if there is a possibility that we might have come to a different conclusion had we known of them.

3. Secondly, Mr. Jackson-Lipkin says that we might have come to a different conclusion because the strength of the case against the Appellant is an important factor when considering whether to order a new trial. Again he goes further and submits that the evidence must be such that there is "something very considerably stronger than a possibility that the case will get home". Indeed, at one stage he appeared to be saying that there must be at least a probability of a conviction on the new trial. He referred us to a number of cases, some of which lend a measure of support to his argument. We are bound to say that in our opinion some of the dicta go very much too far. We view with horror the suggestion that the making by this court of an order for a new trial could, or would, be interpreted as an indication that we thought the appellant was guilty and ought to be convicted at the new trial. That would make a mockery of the administration of justice. Apart from that, if we were certain of the appellant's guilt we would, where that course was open to us, apply the proviso rather than order a new trial. Even worse was the contention that by embarking upon an examination of the evidence after the dismissal of the appeal we would appear to be "straining to order a new trial". We do not believe that the sight of a court acquainting itself with matters relevant to the decision of an issue properly before it could ever be interpreted by a reasonable person as indicating a desire to reach a particular conclusion and we are sad that any one could suggest that it could. The true principle is that the court will not order a new trial where a conviction is improbable or where a conviction will, assuming the same evidence is given, be unsafe or unsatisfactory. In any other case the court will consider the strength of the evidence as just one of the factors relevant to the determination of what are the interests of justice. It is a factor which in some cases may assume greater importance than in others. In so far as the judgment in Aplin v Reg. Cr. App. No. 707 of 1976 decided that the prospect of a further successful prosecution is always of "paramount" importance we think it went too far.

4. Having said all this we think that the Appellant should not suffer from any misunderstanding there may have been and we are prepared to hear his counsel address us further upon the evidence. The amount of detail into which it will be necessary to go is a matter which we must leave to him at this stage.

3rd February 1977.

Representation: