Read the full judgment text of CACV 000330/2006 on BabelCite. This Court of Appeal judgment was delivered on 9 January 2008 before Ma CJHC, Stuart-Moore V-P, Stock JA.
Criminal law – double jeopardy – autrefois acquit – plea in bar – abuse of process – stay of criminal proceedings – foreign prosecutions – collateral challenges – judicial review. The applicants were arrested in Macau in 2000 with the allegation of illegal betting on Hong Kong horse races and money laundering via the '95' Hang Seng Bank account. On 20 March 2002, the Macau Tribunal Judicial de Base convicted them of betting but acquitted them of money laundering. Subsequently arrested in Hong Kong in 2003-2004, the applicants were charged in the District Court with conspiracy to deal with property representing proceeds of an indictable offence under sections 159A and 159C of the Crimes Ordinance (Cap 200) and section 25(1) of the Organised and Serious Crimes Ordinance (Cap 455), in relation to a different bank account (the '74' account), different sums, and a different time period. Whether the plea of autrefois acquit was available – Held: No; the plea is a narrow aspect of res judicata requiring comparison of the legal elements of the two offences, not the facts or evidence relied on; the 'same matter' or 'substantially the same offence' formulations do not extend the plea to different offences arising from the same set of facts. Whether the Hong Kong proceedings should be stayed as an abuse of process on the basis of same or substantially the same facts as the Macau proceedings – Held: No; following Connelly v DPP [1964] AC 1254 and R v Z [2000] 2 AC 483, the rule against double jeopardy beyond the plea in bar prevents re-prosecution for the same incident, event, or transaction; the Hong Kong charge concerned a different bank account, different sums, and a different time period from the Macau proceedings, so it was not the same incident. Whether foreign prosecution decisions can ground a stay for non-prosecution of related charges – Held: No; the requirement to join related charges in the same indictment under rule 7 of the Indictment Rules (Cap 221) is directed at a single prosecuting authority within one jurisdiction, and does not extend to foreign authorities in different jurisdictions with different legal systems, as confirmed in R v Cheong [2006] EWCA Crim 524. The applicants' argument that the Macau prosecutor could and should have charged the '74' account offence as part of a series of similar offences was rejected. The Court also issued guidance on the use of collateral challenges to criminal proceedings and stay applications, noting they should be entertained only in the most exceptional circumstances, and that judicial review is a remedy of last resort. Appeal dismissed with costs to the respondent (order nisi).
Legal issues: Scope of the plea of autrefois acquit · Stay of proceedings as abuse of process based on same or substantially the same facts · Whether foreign prosecution decisions can ground a stay for non-prosecution of related charges
Outcome: Appeal dismissed; the Court held there was no abuse of process and the plea of autrefois acquit was not available.
Cited by 3 cases · Cites 1 case