THE SECRETARY FOR JUSTICE v. LAM TAT MING AND ANOTHER

CACC615/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 615 OF 1998

(ON APPEAL FROM DCCC 529 OF 1997)

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R U L I N G

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Stuart-Moore, V.-P. (giving the ruling of the Court):

1. The matter comes before the Court as an appeal by way of case stated pursuant to section 84 of the District Court Ordinance, Cap.336, ("the Ordinance") which provides:-

"An appeal shall lie at the suit of the Attorney General to the Court of Appeal against a verdict or order of acquittal, which shall include any order quashing or dismissing a charge for any alleged defect therein or want of jurisdiction. Such an appeal shall relate to matters of law only and the following procedure shall apply thereto -

(a) within 7 clear days after the reasons for a verdict have been recorded or after the order of acquittal, or within such further period as a judge of the High Court may, whether before or after the expiration of such period, allow, an application may be made in writing to the judge to state a case setting forth the facts and the grounds on which the verdict or order was arrived at or made and the grounds on which the proceeding is questioned for the opinion of the Court of Appeal; ...

(b) ...;

(c) at the hearing of the appeal, whether or not the respondent appears, the Court of Appeal shall -

(i) if it is satisfied that there is no sufficient ground for interfering, dismiss the appeal; or

(ii) reverse the verdict or order and direct that the trial be resumed or that the accused be retried as the case may be, or find him guilty, record a conviction and pass such sentence on him as might have been passed on him by a judge; and

(iii) give all such necessary and consequential directions as it shall think fit."

2. This right of appeal has to be contrasted to the position in the Court of First Instance where the prosecution is given no right of appeal in proceedings which have resulted in a defendant's acquittal. The most the prosecution can do in those circumstances is to refer a question of law to the Court of Appeal under section 81D of the Criminal Procedure Ordinance, Cap. 221, which provides, so far as it is relevant:

"(1) Where a person tried on indictment has been acquitted (whether in respect of the whole or part of the indictment) the Attorney General may, if he desires the opinion of the Court of Appeal on a question of law which has arisen in the case, refer that question to the Court of Appeal which shall, in accordance with this section, consider the point and give its opinion on it.

(4) A reference under this section shall not affect the trial in relation to which the reference is made or any acquittal in that trial."

3. It appears to be accepted that at least in theory the procedure under section 81D of the Criminal Procedure Ordinance could be followed for appeals from the District Court, albeit with all the experience of counsel today in Court, it does not seem to be within their knowledge that it has been used in this way in the past.

4. Whether or not the concession is right, it is the contention of the Secretary for Justice that the acquittal of the Respondents in the District Court was brought about as the result of Judge Gill's erroneous approach in law which led to a ruling that the evidence of confessions, allegedly made by the Respondents, was inadmissible. As a result of this, and almost immediately following the trial judge's ruling, the prosecution offered no further evidence and verdicts of not guilty were entered in respect of both Respondents.

5. It is further contended for the Secretary for Justice that the evidence which the judge had ruled inadmissible was so crucially important to the prosecution's case that, despite having some other evidence, the prosecution was realistically unable to offer further evidence once the confession evidence had been excluded.

6. However, before the appeal could be heard, Mr. Chandler, on behalf of the 2nd Respondent, moved the Court to dismiss the appeal for what effectively was a want of jurisdiction. He has submitted that where the prosecution takes the calculated and deliberate step of offering no further evidence against a defendant, this will operate as a bar to further proceedings being taken against that defendant on appeal by way of case stated pursuant to section 84 of the Ordinance. Mr. Chandler submitted that in the circumstances which now prevail, the 2nd Respondent is entitled to plead autrefois acquit. Furthermore, he argued that in circumstances such as these, where the Secretary for Justice desired the Court of Appeal's opinion on a question of law, the Applicant should have proceeded by way of Reference pursuant to section 81D of the Criminal Procedure Ordinance.

7. The point so far as it relates to the principles of autrefois acquit is in our view misconceived. It is perfectly clear from the provisions of section 84 of the Ordinance that a verdict or order of acquittal must have been recorded before any proceedings can be brought under this section. Putting the matter another way, a plea of autrefois acquit is obviously subject to the right of the Secretary for Justice to appeal on a matter of law against the acquittal.

8. The real issue for our consideration at this stage is whether this appeal properly comes within section 84 of the Ordinance. It has nothing whatever to do with a plea of autrefois acquit.

9. Mr. Chandler's further contention is that section 84 can only apply in circumstances where the Secretary for Justice can show that the impugned acquittal is the direct result of an error of law which has been made by the trial judge and not as the result of a considered decision by the prosecution to offer no evidence. He went so far as to say that the acquittal had been 'engineered' by the prosecution with the effect that the appeal had been invalidated. He argued, in other words, that there must be a direct 'causal' link between the error of law and the acquittal. No authority was forthcoming for this proposition.

10. It seems to this Court that there is nothing which supports this contention. Looking at the terms of section 84 of the Ordinance, which so far as they are material, have already been cited, there is nothing which gives any indication of an intention on the part of the legislature to limit the right of appeal in the way that Mr. Chandler has suggested. It is clear that the point of law being canvassed was of critical importance to the prosecution case. Mr. Bruce, S.C. on behalf of the Secretary for Justice, conceded that were it otherwise it could constitute an abuse of process to invoke section 84.

11. In this context, an abuse of process was quite rightly, in our opinion, never advanced by Mr. Chandler as a ground for suggesting that the proceedings should be stayed or prevented from going further.

12. We are satisfied that the grounds on which the proceeding may be questioned, to adopt some of the words of section 84(a) of the Ordinance, can include errors of law relating to the admissibility of evidence.

13. Dealing with the suggestion that the acquittal had been 'engineered', as Mr. Chandler put it, Mr. Bruce pointed out that it would be highly unsatisfactory if, before an appeal under section 84 of the Ordinance could be proceeded with, it was required of the prosecution to adduce all its evidence, however unlikely a conviction might be. In our opinion, it would not be in anyone's interests, in order merely to preserve its right of appeal, that the prosecution should have to proceed with the trial to the point when an almost inevitable verdict of acquittal was announced. Indeed, it would be irresponsible for a prosecutor to continue with the case, if he had formed the view that an acquittal was the only likely outcome. Such a continuation of proceedings, in itself, might well be described as an abuse of the Court's process.

14. Taking the present example, the prosecution had, as the result of the trial judge's ruling in law, been deprived of what was the most substantial part of its evidence by the decision that it was inadmissible. In our view, the prosecution had every right to challenge the correctness of that ruling under section 84 of the Ordinance. If the ruling was incorrect in law, it could be rectified. When seen in this light, any continuation by the prosecution of the trial below, after the judge's ruling, would not have been in the interests of justice. Far from being an acquittal that had been engineered by the prosecution, the offering of no further evidence was, in the special circumstances which apply here, the only sensible course for the prosecution to have adopted.

15. Accordingly, we dismiss these applications, and rule that the motion to dismiss the case stated must fail.