TAM CHUNG SHUN v. HKSAR

FAMC No. 1 of 2008

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 1 OF 2008 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 628 OF 2007)

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

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Mr Justice Chan PJ:

1.  The Applicant’s conviction by a magistrate of indecent assault was quashed on appeal by the judge who ordered a re-trial. This is an application for leave to appeal against the order for re-trial on the ground of substantial and grave injustice.

2.  The applicant’s complaint is that his counsel had not been accorded a proper hearing on the issue of re-trial. The transcript revealed that the judge clearly raised this issue with counsel before he delivered his decision. The judge gave an indication as to his views on the evidence, and thereupon counsel for the applicant responded that he would not argue further and would not apply for costs either. If it was considered that there were grounds for opposing a re-trial, we do not think that counsel in the proper discharge of his duty towards the applicant and to the court, would be deterred from submitting them to the court. There is no suggestion that counsel had been deterred from discharging his duty.

3.  Mr Andrew Bruce SC for the applicant also submits that there might have been a misunderstanding on the part of counsel that the judge was not dealing with the issue of re-trial but some other matter. Judging from what counsel said before the judge, we do not think there was such a misunderstanding, but even if there had been, this was not a good enough reason for not raising an objection and making the appropriate submission. We do not accept that in the circumstances of this case, it can be said that the applicant had been deprived of an opportunity of being heard on the issue.

4.  Leading counsel in his written submission also refers us to three matters which he said had not but should have been raised with the judge and submits that a re-trial should not have been ordered. We are not satisfied that it is reasonably arguable that the judge had not taken these matters into consideration. Ordering a re-trial was a legitimate course upon due consideration of those matters.

5.  The application for leave to appeal is dismissed.