HKSAR v. Lee Shing Hung

FAMC No. 29 of 2006

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 29 OF 2006 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM
HCMA NO. 903 OF 2005)

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Between:

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Appeal Committee: Chief Justice Li, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

Date of Hearing: 29 September 2006

Date of Determination: 29 September 2006

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D E T E R M I N A T I O N

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Chief Justice Li:

1.The applicant, a government servant, was convicted before the Magistrate, Ms Bina Chainrai, for offences of dishonesty under the Theft Ordinance in relation to Home Financing Allowance payments claimed and received in circumstances where there was no entitlement to such payments.  He was sentenced to 150 hours of community service. 

2.Deputy High Court Judge Pang set aside the conviction, holding that the basis upon which the dishonesty findings were made was unsound.  He ordered a retrial even though the applicant had by then fully served his sentence, stating :

“The evidence in this case is overwhelming, and its successful appeal purely technical.  The matter itself engages the very important question of whether the appellant should continue to enjoy the trust of the government and the public.  In the circumstances, notwithstanding counsel’s submissions, which I have fully considered, I regard this case as one that should be remitted for retrial.” (§53)

3.Mr Wong Man Kit SC, appearing for the applicant with Ms Cancy Liu, seeks leave to appeal against the order for retrial, submitting that where, as in the present case, the sentence has been served, a retrial is usually not ordered and the order for retrial in this case constitutes a substantial and grave injustice.  He criticises the matters the judge took into account in deciding to order a retrial, and submits that in the circumstances of this case, a retrial should not have been ordered.

4.In our view, the fact of having served the sentence does not of itself make an order for retrial wrong in principle.  Whether a retrial should be ordered involves an exercise of discretion by the intermediate appellate court taking into account all relevant considerations, including the public interest and the legitimate interests of the defendant.  The decision in the present case cannot be said to fall outside the proper scope of that discretion and leave to appeal must be refused.

Mr Wong Man Kit SC and Ms Cancy Liu (instructed by Messrs. Philip K.H. Wong, Kennedy Y.H. Wong & Co.) for the applicant

Mr Kevin P. Zervos SC (of the Department of Justice) for the respondent