HKSAR v. CHUNG YUET SHEUNG, LORRAIN

CACC 408/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 408 OF 2009

(ON APPEAL FROM HCCC NO. 138 OF 2009)

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BETWEEN

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REASONS FOR DETERMINATION

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Hon Lunn JA (giving the reasons for determination of the court) :

1.  At the hearing on 17 January 2012 we refused the application of Mr Zervos SC, the Director of Public Prosecutions, made on the behalf of the respondent that we order the retrial of the appellant. The circumstances of the application were unusual and our refusal calls for an explanation. We said that we would give our reasons in due course. That we do now. By letter to the Registrar of the High Court, dated 16 November 2011, Mr Zervos had given notice that the respondent wished to make that application to this court, pursuant to section 83E of the Criminal Procedure Ordinance, Cap. 221. The application was opposed by Mr Loughran, on behalf of the appellant.

The hearing of the appeal against conviction : 10 November 2011

2.  At the hearing on 10 November 2011 of the appellant’s application for leave to appeal against conviction we gave judgment allowing the appeal and quashing all the convictions and the sentences imposed in consequence.  We said that we would give our reasons for judgment in due course.  That we did on 17 January 2012, immediately before the application.  We had provided the parties with an advance copy of the judgment the previous day.

The original application

3.  Following the court’s judgment on 10 November 2011, counsel for the respondent, Mr Wesley Wong, applied for a retrial of the appellant.  The court having informed the parties that the appeal had been allowed on the basis of a single ground of appeal advanced on behalf of the appellant, the parties responded affirmatively to the court’s enquiry as to whether they were in a position to argue the matter of retrial there and then.  In response to a series of questions the court was informed by Mr Wong that the appellant had been on bail in the almost 2 years’ period from her arrest in December 2007 until the commencement of her trial and that the delay was necessitated by the complexity of the case and the need to obtain banking records.  Mr Wong submitted that the offences alleged against the appellant were serious, noting that she had been sentenced to a total of 7 years’ imprisonment, and contended that the respondent’s case was a strong one.

4.  In opposing the application for a retrial, Mr Loughran submitted that the events the subject of the indictment were stale, having occurred in the period October 2005 to November 2007.  The matter had been hanging over the appellant since December 2007 and the appellant had served just over two years’ imprisonment.  The appellant had been in custody since her conviction on 17 November 2009, with the consequence that her earliest release date with full remission of sentence for good behaviour was 18 July 2014.  Also, he said that the appellant was eligible to apply for parole after she had served half of her sentence.  Then, he raised the issue of the availability to testify at any retrial of the four prosecution witnesses who were the alleged victims of the theft and fraud counts on the indictment.

5.  In order to afford the opportunity to the respondent to make further enquiries as to the issue of the availability of those prosecution witnesses the hearing was adjourned until the late afternoon.  At the resumed hearing Mr Wong informed the court that his application for a retrial was no longer “sustainable”.  He went on to explain that he took that view on the basis that two of those witnesses, Madam Josephine Yung Pui Lai (PW1) and Madam Yu Cheung Kit (PW3), said that they had difficulty recalling the events and had given the police officers making enquiries of them the impression that they were reluctant to testify again.  Those two witnesses were the alleged victims of three of the counts on the indictment : Madam Yung in respect of the fraud alleged in count 1, and Madam Yu in respect of the fraud and theft alleged respectively in counts 4 and 5.  In the course of discussions that ensued between the Bench and the Bar, the following interchange occurred :

“ Stock VP : …. The question we are posing to you, you’ve told us what your difficulties are, the question we have to ask you is whether there is an application for a retrial or not, one way or the other? Has a decision being taken?

Mr Wong : Yes, yes.

Stock VP : And the answer is?

Mr Wong : The answer is I don’t think, in all the circumstances it is sustainable for the prosecution to ask for a retrial given the reluctance of the witness and their professed difficulties in remembering the…

Stock VP : The answer to my question is you’re not applying for a retrial.

Mr Wong : No, no.”

6.  In the result, after a short adjournment, the court addressed the issue finally :

“ Stock VP : Whilst we confess to a degree of surprise at the approach of the respondent, given that the application retrial has been withdrawn, we make no order.”

7.  Mr Zervos explained the respondent’s current application for a retrial on the basis that, following enquiries made subsequent to the hearing on 10 November 2011 of Madam Yung and Madam Yu, the respondent was satisfied that since they resided in Hong Kong and, being subject to a witness summons to attend to give evidence as prosecution witnesses, they would be available to give evidence at a retrial and would be able to refresh their memory before so doing from their witness statements.

A CONSIDERATION OF THE SUBMISSIONS

Functus officio

8.  The parties were agreed that the first issue for the court to consider was whether or not it is functus officio, namely that its functions have been discharged the court having made a determination in respect of a retrial.  Mr Zervos submitted that the merits of the application for retrial had never been adjudicated upon by this court, given that the respondent had withdrawn its application.  In consequence, the court had made no order in relation to retrial.

9.  In his written submissions Mr Loughran contended that the power in this court to order a retrial pursuant to section 83E(1) of the Criminal Procedure Ordinance, Cap. 221 imposed a corresponding duty on the court.  The decision is that of this court.  This court could order a retrial even if the prosecution declined to express a view on the issue or positively opposed it.  He drew attention to the words of the provision :

“ Where the Court of Appeal allows an appeal against conviction and it appears to the Court of Appeal that the interests of justice so require, it may order the appellant to be retried.”

10.  Mr Loughran submitted that at the hearing of 10 November 2011, notwithstanding the fact that the prosecution had withdrawn its application for a retrial, this court in performance of its duties considered the merits of ordering a retrial and determined not to so order.  That was a final decision of the court conveyed to the appellant personally, as she was present in the court room.

11.  It is clear from the interchange between the Bench and counsel for the respondent at the hearing of 10 November 2012 that the merits of ordering a retrial in the interests of justice were canvassed.  In response to enquiries of the court counsel for the respondent informed the court of the gravity of the offences alleged against the appellant in respect of the two remaining prosecution witnesses, Mr Shen (PW2) and Mr Tse (PW4), and the sentences imposed on the appellant in consequence of convictions for those offences.  In respect of the former, count 2 alleged a fraud of $22 million, whereas in respect of the latter two counts of theft, counts 3 and 7 alleged theft of a total of about $237,000.  The appellant had been sentenced to 5 years’ imprisonment in respect of count 2 and 2 years’ imprisonment in respect of each of counts 3 and 7.  The latter two sentences of imprisonment were ordered to be served concurrently with each other but consecutively to the sentence of 5 years’ imprisonment imposed in respect of count 2.  Accordingly, as Mr Wong said the total sentence imposed on the appellant in respect of those counts was 7 years’ imprisonment.  However, having correctly described that position, somewhat surprisingly Mr Wong said of the appellant :

“ (She) has served a substantial part of the sentence in respect the counts relating to PWs 2 and 4.”

12.  Clearly addressing the issue of the merits of ordering a retrial, Stock VP said:

“ What is exercising our minds in favour of a retrial, I have to say for the benefit of Mr Loughran’s ears as well, are two matters. On the basis of the papers we have seen these were, if proved, serious and mean offences and involving a gross breach of trust and a breach of trust in relation to friends and it appears to us, on the papers, that the evidence against the appellant was strong. Recognising the fact that she has already served two years’ imprisonment we were nonetheless minded to order a retrial.”

13.  It was in that context that, counsel for the respondent having resiled from his application for a retrial and having indicated that he was no longer making such application, after a short adjournment, the Vice-President said :

“ … given that the application for a retrial has been withdrawn, we make no order.”

14.  The obvious relevance of the reference to the withdrawal by the prosecution of its application for a retrial is that the prosecution has the carriage of any prospective retrial.  The prosecution calls their witnesses and leads their evidence at a retrial.  The prosecution, not this court, is in the position to determine the availability of that evidence.  The prosecution’s withdrawal of that application was made in the face of the statement by the Vice-President that on a consideration of the papers the court was “minded to order a retrial”. The simple statement of the Vice-President, “we make no order” begs the question “order, as to what?”  In context, clearly the answer is “of retrial”.  That was the subject under active consideration.  Section 83(3) of the Criminal Procedure Ordinance provides that an order of this court quashing a conviction operates as a direction to the court of trial to enter a judgment and verdict of acquittal “... except when under section 83E the appellant is ordered to be retried”.  So, in the absence of such an order by this court a judgment and verdict of acquittal follows.

15.  In our judgment, final determination of the issue of a retrial was made by this court on 10 November 2011. 

The perfection rule

16.  The second issue that arises for consideration is when it was that the court’s order was “finally recorded”.  Until that event occurs, a court has the power to vary its decision made earlier.  In the judgment of the Court of Final Appeal in HKSAR v Tins Label Factory Limited (2008) 11 HKCFAR 637 Li CJ noted (page 647 B-D; paragraph 16) :

“ For a court of record, it is a well-established rule that until the point in time when its order is finally recorded, it has the power to recall and vary a decision it had earlier made. That moment marks the cut-off point after which the power to change an earlier decision ceases. The final entry of the order in the record is known as the perfection of the order.”

There is no dispute that the Court of Appeal is a court of record.

17.  In his oral argument Mr Zervos submitted that if, contrary to his primary position, this court had reached and articulated a final determination in respect of the issue of retrial, the order had not been perfected and the court had power to vary its earlier decision.  Mr Zervos acknowledged that the court’s power to vary an earlier decision ought to be exercised only in an “exceptional case” and that in doing so the court must “exercise great caution” and do so only if “firmly satisfied” that the “previous decision was incorrect and that alteration is necessary to ensure that justice is done” (see paragraph 32 of Li CJ’s judgment in Tin’s Label Factory).

Residual discretion

18.  In the alternative, Mr Zervos contended that even if the order had been perfected the court had a residual discretion, after perfection, to alter its decision not only in circumstances of a nullity but also where “because of a failure to follow the rules or the well-established practice, there was a likelihood that injustice may be done” (see paragraphs 53-56 of Li CJ’s judgment in Tin’s Label Factory).  Again, he accepted that it was a wholly exceptional course to take.

19.  Mr Zervos submitted that in stating that it made no order of retrial the court had erred in doing so on the only reason articulated, namely, “... given that the application for a retrial has been withdrawn”.  The position of the respondent was not determinative of the issue.  The duty of the court was to reach its conclusion “in the interests of justice”.  The court had not done so. The reasons articulated by the Vice-President (see paragraph 12), in the course of an interchange with counsel for the respondent, that militated in favour of a retrial were compelling.

20.  The first consideration is : by what step or steps was the court’s order perfected? In the sequence of oral orders the court first allowed the appeal against conviction and quashed the convictions.  Then, having received submissions from both parties as to whether it was in the interests of justice to order a retrial, but in the face of the respondent’s withdrawal of an application for a retrial, the court said that it made “no order”.  Of course, being present in the court at the time of both orders the appellant and the respondent heard what the court said on both issues.

21.  There being no form made pursuant to the Criminal Appeal Rules specifically providing for communication of the judgment of this court quashing the appellant’s convictions and sentences, the mechanics by which the court of trial was informed of that judgment was that a Form XXIV dated 10 November 2011, made pursuant to rule 62 of those Rules, and directed to the Commissioner of Correctional Services signed on behalf of the Registrar of the High Court was copied to and received by the clerk to the late Mr  Justice Mackintosh on the same date.  It stated that this court had “finally determined” the appellant’s appeal against conviction :

“ Application for Leave to Appeal against Conviction is allowed, treat the application as the hearing of the appeal, conviction be quashed and sentence be set aside.”

22.  As noted earlier such an order, in the absence of an order for retrial, operates as a direction to the court of trial “... to enter, instead of a record of conviction, a judgment and verdict of acquittal.” That form from the Registrar was attached to the lower court file.  However, no specific record was made of the requisite consequence of this court’s order, namely an entry in the record of “a judgment and verdict of acquittal”.  Clearly, the form was no more than a communication from the Registrar and not the making of the final record (see paragraphs 42-45 in the judgment of Li CJ in Tin’s Label Factory).

23.  We were prepared to assume that the order was not perfected as required.  What then?  It has to be acknowledged that only one reason was stated by the court in respect of its determination not to order a retrial, namely the withdrawal of the application for a retrial by the respondent.  Clearly, the position taken by the respondent, was one of the matters to which this court was to have regard in considering the “interests of justice”, but it did not determine the issue.  Again, we were prepared to act on an assumption, that in this case this court had acted only on that single reason articulated in making its order.  To have done so, without regard to all the circumstances relevant to the “interests of justice”, would have been in error.  If that had been the case, was that an error that would require this court to reopen the case and vary its determination not to order a retrial of the appellant?

24.  The observations of Li CJ in Tin’s Label Factory (paragraphs 29-34), albeit in the circumstances of a magisterial appeal in the context of the determination of an appeal against conviction, in respect of the factors relevant to the determination of the issue are nevertheless apposite.  Not surprisingly, he noted that the court should be more ready to exercise that power in favour of an appellant whose appeal against conviction had been dismissed than where the appeal had been allowed and the conviction quashed.  Further, as Li CJ noted, the appellate process (paragraph 28), “does not contemplate the opportunity to have a second bite at the cherry.”  In that context, the observations of Lord Woolf, giving the judgment of the Court of Appeal of England and Wales in Taylor v Lawrence [2003] QB 528, cited with approval by Li CJ (page 655 D-J; paragraphs 55-56) in respect of the exercise of the court’s residual discretion are also in point :

“ The effect of reopening the appeal on others and the extent to which the complaining party is the author of his own misfortune will also be important considerations.”

25.  In the instant appeal the appellant has had the stress, uncertainty and expense not only in respect of her appeal against conviction but also, subsequently, in respect of the respondent’s renewed application in respect of retrial.  Furthermore, on any view, having been resolute in the withdrawal of its application for a retrial, and having done so in a considered manner, clearly the respondent is in large part author of the misfortune or injustice of which it complains.  Of the issue of injustice, in the context of the public interest in a retrial, it is to be remembered that the appellant had served two years’ imprisonment by the time her convictions and sentences were quashed and that, with the anticipated remission of sentence for good behavior, on the basis of the sentences imposed by the late Mackintosh J it was likely that, if convicted, she would have had to serve no more than a further 18 months’ imprisonment.

CONCLUSION

26.  In the result, acting on the assumptions set out earlier, we were satisfied that it was not appropriate for this court to reopen the case and vary its order in respect of retrial, having regard to either the perfection rule or the residual discretion.  Accordingly, we did not call upon Mr Loughran to address the court and refused the application.

27.  We direct that those seized of the lower court files in this matter expunge the record of the appellant’s convictions and in its place enter a judgment and verdict of acquittal, thereby finally recording the consequences of our order quashing the convictions of the appellant to pursuant to section 83(3) of the Criminal Procedure Ordinance.

Costs          

28.  Quite properly and understandably Mr Zervos did not contest the appellant’s application for the costs of this application, which order we made in the appellant’s favour, to be taxed if not agreed.