HKSAR v. LAM CHUNG PAN AND ANOTHER

[English Translation – 英譯本]

CACC 285/2018

[2021] HKCA 1507

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL CASE NO. 285 OF 2018

(ON APPEAL FROM HCCC NO. 219 OF 2016)

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JUDGMENT

(Retrial and Costs Application)

Hon Chu JA (giving the judgment of the Court):

Introduction

1.  The 1^st and 2^nd applicants were jointly charged with one count of conspiracy to traffic in a dangerous drug. The jury convicted them unanimously (7:0) and by a majority verdict (5:2) respectively after trial in the Court of First Instance of the High Court, and the two were each sentenced to 27 years’ imprisonment. They both applied for leave to appeal against the conviction.

2.  After the hearing, this Court (Hon Yeung VP, Chu and D Pang JJA) delivered the judgment[1] on 22 July 2021, allowing the two applicants’ appeal applications and quashing their convictions.

3.  The facts and the prosecution evidence of the present case are stated in paragraphs 4 to 47 in the judgment of this Court, which I shall not repeat here.

4.  On 13 August 2021, the respondent made an application to remit the case of both applicants to the Court of First Instance of the High Court for retrial on the amended charge of the original trial.

5.  On the other hand, on 27 July 2021, the 1^st applicant made applications pursuant to section 9 of the Costs in Criminal Cases Ordinance, Cap 492, Laws of Hong Kong, against the respondent for (i) the costs of the original trial, and (ii) the costs of the appeal.

6.  According to the directions[2] of this Court, both applications shall be dealt with by way of written submissions. We hereby give the judgment on these two applications.

Application for retrial

7.  Regarding the application for retrial, the 1^st applicant stated in his skeleton submissions that whether a retrial should be ordered is a matter of discretion which depends entirely on what justice requires, and apart from that, he made no further submissions, while the 2^nd applicant has not made any submission in this regard.

8.  The respondent’s main grounds for the retrial application are as follows:

(1)  The facts of this case were very serious involving a conspiracy of the dangerous drug “ice”, which weighed about 3.7 kilogrammes with a market value exceeding 1.3 million dollars. As the case involves great public interest, a retrial should be ordered.

(2)  When the Court of Appeal allowed the appeal of both applicants, the material consideration was that the jury was not properly and sufficiently directed on the law in the original trial, which was not related in any material way to the credibility of the witnesses and the evidence of the case. Accordingly, there would be a reasonable chance of conviction in a retrial.

(3)  The tainted witness in the case (PW12) had confirmed with the police that he would agree to continue to act as a prosecution witness in the retrial. Therefore, in the retrial, the prosecution evidence would be just as sufficient and there would also be a reasonable chance of conviction.

9.  The respondent cited R v Holgate (No. 2)[3], Ting James Henry v HKSAR[4] (quoting Au Pui Kuen v Attorney General of Hong Kong[5]) and the judgments of the Court of Appeal[6] and the Court of Final Appeal[7] in 2015 in HKSAR v Bian Zhenju.

10.  Section 83E(1) of the Criminal Procedure Ordinance (Cap 221) provides that the Court of Appeal may order a retrial if the interests of justice so require.

11.  Recently, the Court of Final Appeal in HKSAR v Zhou Limei[8] and HKSAR v Liang Yaoqiang[9] reiterated the legal principles of ordering a retrial, including the principles and the cases cited above by the respondent.

12.  As stated in the skeleton submissions of the 1^st applicant, whether the Court of Appeal should exercise discretion to order a retrial depends entirely on what the interests of justice require.

13.  The Court of Final Appeal emphasized in the judgment that all relevant factors must be taken into account in considering what the interests of justice require. As circumstances vary from case to case, the relevant factors to be considered and the weight given should be different. Generally speaking, the court should consider the circumstances and interests of the accused on the one hand, and the public interest on the other. The former includes avoiding unnecessary delay in criminal proceedings, which will cause oppression, as well as suffering that a criminal trial undeniably brings to the accused to a certain extent. The latter concerns bringing those who are guilty of serious crimes to justice, and they should not be allowed to evade legal responsibility because of technical errors that occur during the course of a trial or directions given by the judge to the jury. In this respect, the strength of the prosecution case is a relevant factor.

14.  In the present case, the applicants have neither made any statements in respect of their personal circumstances or whether a retrial may cause any prejudice or unfairness to them, nor have they raised any substantial objection to the respondent’s submissions on public interest and the chance of conviction in a retrial.

15.  In our view, in light of (i) the count in the present case being very serious; (ii) the leave to appeal being granted by this Court on the ground that the trial judge did not give proper and sufficient directions to the jury in respect of the evidence of “uncharged acts” and “post-offence conduct”, which was revealed in PW12’s testimony, and the jury might have misused the evidence in these two areas, thereby affecting their assessment of the reliability and credibility of the prosecution case or the defence evidence; and (iii) the evidence in this case, including the circumstantial evidence and PW12’s testimony, an order for retrial is in line with public interest.

16.  Furthermore, there is nothing in this case to show that, given the circumstances or interests of the two applicants or the presence of   other factors, injustice would be caused by a retrial.

17.  Therefore, the respondent’s application is granted by this Court and the applicants’ case is remitted to the Court of First Instance for a retrial.

1^st applicant’s application for costs

18.  The respondent does not object to the 1^st applicant’s application for costs for the appeal but objects to his application for the costs of the original trial (including the costs of the bail application pending trial).

19.  The 1^st applicant submitted that according to the principle affirmed by the Court of Final Appeal in Tong Cun Lin v HKSAR[10], Ting James Henry v HKSAR (No. 2)[11] and HKSAR v Pang Hung Fai (No. 2)[12], costs should be awarded to an acquitted applicant unless there are positive reasons to depart from the principle. No such reasons can be found in the present case. The 1^st applicant also submitted that although he was legally aided, he was required to make contribution towards his costs. Moreover, the legal aid certificate did not cover the bail application pending trial and he paid for the solicitors and counsel engaged for the application.

20.  The respondent agreed to the legal principle cited by the 1^st applicant but took the view that the 1^st applicant’s conduct in the present case aroused suspicion and constituted exceptional circumstances that departed from the basic principle. In the respondent’s view, as the 1^st applicant’s bail application pending trial is self-induced, even if he is awarded the costs of the original trial, the application for the costs of the bail application should be struck out.

21.  The respondent submitted that the 1^st applicant’s conduct aroused suspicion mainly because of the oral admission he made upon arrest and the detailed admissions he later made in the video recorded interview. At the original trial, the 1^st applicant challenged these admissions, including their voluntariness and authenticity.

22.  In our view, as the case will be retried, it is inappropriate to form any opinion at the present stage on the evidence in dispute in the case. Therefore, it is inappropriate to give a conclusive ruling on whether in this case the 1^st applicant’s conduct aroused suspicion. For that reason, we order that the 1^st applicant’s application for the costs of the original trial be in the cause of the retrial. If the 1^st applicant is acquitted in the retrial, he will be awarded the costs of the original trial; but if he is convicted after retrial, he will not be awarded the costs.

23.  Regarding the 1^st applicant’s costs of the bail application pending trial, the respondent submitted that the 1^st applicant was originally granted bail in the magistracy, but he breached the bail conditions several times afterwards, such as being late for the hearings, failing to report to the police station and so on. When the case was committed to the High Court, the 1^st applicant was absent from the scheduled hearing. He was therefore arrested and his bail was revoked. After that, he applied for bail three times and was represented by counsel only on his second application dated 22 September 2016, but his application was refused because he had breached the bail conditions several times. Finally, the 1^st applicant was granted bail on 17 January 2017.

24.  We agree that, in the above circumstances, if the 1^st applicant had not repeatedly breached the bail conditions, his bail pending trial would not have been revoked. Accordingly, the costs of his bail application were caused by his own conduct. His application for the costs of his bail application pending trial is refused.

Conclusion

25.  We hereby make the following orders:

(1)  The case of the 1^st and 2^nd applicants be remitted to the Court of First Instance for retrial. Both applicants shall continue to be remanded in custody pending the retrial.

(2)  The 1^st applicant’s application for the costs of the appeal be allowed, to be taxed if not agreed between the 1^st applicant and the respondent.

(3)  The 1^st applicant’s application for the costs of the bail application pending trial be refused.

(4)  The 1^st applicant’s costs of the original trial (not including the costs of the bail application pending trial) be in the cause of the retrial.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Walter Lee, solicitor.