HKSAR v. Tidoy, Primitivo Asuncion

CACC277/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 277 OF 2013

(ON APPEAL FROM DCCC NO. 55 OF 2013)

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R U L I N G

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Hon McWalters JA (giving the ruling of the Court):

Introduction

1.The appellant was charged with unlawful wounding with intent to do grievous bodily harm, contrary to section 17(a) of the Offences against the Person Ordinance, Cap 212 in respect of an incident occurring on 4 November 2012.

2.On 9 July 2013 the appellant was convicted of this offence and on 26 July 2013 was sentenced to 3 years’ imprisonment.  The appellant applied for leave to appeal against his conviction and sentence and on 1 December 2014 we granted him leave, allowed his appeal and quashed his conviction. 

3.In our judgment we directed the parties to file written submissions on the issue of retrial.  Those have now been received.

The Submissions on Retrial

4.The respondent applies for an order for the appellant’s retrial.  In support of its application counsel for the respondent refers to the seriousness of the offence and the strength of the evidence which he says was unaffected by the judgment of this Court in quashing the conviction.  Notwithstanding that the appellant has been in custody since 26 July 2013 and is due for release on 7 June 2015 the respondent maintains that the interests of justice mandate his retrial.

5.Counsel for the appellant realistically recognizes that the primary basis for opposing the application for retrial is the amount of time that the appellant has spent in custody which means he has served a substantial part of his sentence.  Additionally, there is the factor that the reason the appeal was allowed was in part because of evidential difficulties arising from failings in the preparation and presentation of the prosecution case.

Discussion

6.There is much force in the arguments advanced on behalf of the appellant.  But there is no gainsaying that this is a serious crime of violence from which the victim was quite lucky to escape relatively unscathed.  The public interest in ensuring that the perpetrator of this offence is brought to justice is a strong one and in our view outweighs the private interests of the appellant in enduring a further trial.  We therefore order that the appellant be retried and direct that an early date be fixed for his trial.

Written submission by Mr Raymond Cheng SADPP(Ag), of the Department of Justice, for the respondent

Written submission by Mr David Boyton, instructed by Ho & Ip, assigned by DLA, for the appellant