HKSAR v. Hau King Yeung

CACC 375/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 375 OF 2005

(ON APPEAL FROM HCCC NO. 120 of 2004)

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BETWEEN

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Before:   Hon Stuart-Moore VP, Stock and Yeung JJA

Date of Hearing: 19 December 2006

Date of Judgment: 19 December 2006

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1.This is an application, pursuant to section 32(2) of the Court of Final Appeal Ordinance, Cap. 484, for a certificate that points of law of great and general importance are involved in the decision we gave on 10 November 2006.  In the application dated 13 November 2006, two points are identified, namely:

“(1) whether, as a matter of law or practice, it can ever be right for an accused to be tried for the third time on the same charge when there has been inordinate delay between the event, the subject of the charge and the third trial; and

(2) if the answer to Question 1 is in the affirmative, whether as a matter of law, the judge in his summing up should direct the jury to the risk of the prejudice caused by the delay.”

2.The first question presupposes inordinate delay which we understand to mean a delay such as to prejudice a fair trial, in which case the question is hardly one that requires determination.  Similarly, with the second question which is posed, it cannot be suggested that it is never right to order a third trial as this decision will be determined by issues which are entirely case-sensitive.

3.We fail, in the circumstances, to see how it could be appropriate to grant a certificate.  Accordingly, the application is dismissed.

Mr John Reading, SC, DDPP, and Ms Ada Chan, SGC (Ag.), of the Department of Justice, for the Respondent.

Mr Graham Harris, instructed by Messrs Haldanes, assigned by Director of Legal Aid, for the Applicant.