HKSAR v. LAM PUI FUNG

CAC C 93/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 93 OF 2009

(ON APPEAL FROM HCCC NO. 222 OF 2008)

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BETWEEN

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RULING AS TO A RETRIAL

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

1.  On 5 March 2009, after a trial before Mrs Justice Bokhary and a jury, the applicant was convicted of murder by unanimous verdict. He was sentenced to life imprisonment for the murder and to a concurrent sentence of four years and eight months’ imprisonment for an offence of robbery to which he had pleaded guilty at the commencement of trial.

2.  The applicant sought leave to appeal his conviction.  In a judgment dated 7 September 2011, we granted the applicant leave to appeal and, treating the hearing of the application as the appeal, we allowed the appeal, quashing the conviction for murder.

3.  As to the issue of a retrial, we invited submissions in writing.  Those submissions have now been made.

4.  On behalf of the applicant, Mr McGowan has submitted that this is an appropriate case in which this Court, exercising its powers under s. 83A(2) of the Criminal Procedure Ordinance, Cap. 221, should substitute a conviction for manslaughter, a verdict which was, on the facts, open to the jury and to which the applicant was all times prepared to plead.

5.  We do not agree.  The appeal was allowed because there was a failure on the part of the judge in the course of directions to the jury to put the defence case fairly and accurately.  The appeal was not allowed because of matters touching on any inherent weakness in the prosecution case.  There appears to us to be ample evidence to warrant a trial for murder and accordingly a retrial is ordered.  Pending the outcome of that retrial, the applicant shall remain in custody.