HKSAR v. LEE WAN LUNG

CACC 190/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 190 OF 2006

(ON APPEAL FROM DCCC NO. 1209 OF 2005)

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J U D G M E N T

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

1. On 11 October 2007 we quashed this applicant’s conviction for indecent assault upon a young girl.  We subsequently received written submissions on the question of a retrial.  Reasons for Judgment were handed down thereafter on 26 November 2007 and we ordered a retrial.  The applications before us relate to that order.

2. The notice of motion itself asks for leave to appeal to the Court of Final Appeal and, as Mr McGowan on behalf of the applicant today recognized, there is no power in this Court in criminal cases to grant leave, and that application is accordingly dismissed.

3. There is then a document entitled: “Additional grounds for point of law for certification” which asks for a certificate and which we will treat as an application made in proper form for a certificate in the following terms:

“

Whether, when an Appellate Court has reasons to conclude that the original Reasons for Verdict and/or Perfected Grounds of Appeal raise at a least a lurking doubt as to the Safety of the Conviction, it should fully examine and determine such concerns before ordering a retrial after allowing the Appeal on a mere “technical” failing alone.”

4. One might have thought that the answer to that question was obvious and if so the only remaining issue is whether we have applied the principle correctly.  That in truth is what is challenged by the applicant. 

5. Be that as it may, the basis of the application appears to be founded on the assumptions:

(1)	that when this Court allowed the appeal, we were exercised by one ground only, namely, the fact that the court below did not view the video-tapes of the complainant’s evidence in full and that they were not viewed in open court before the complainant was cross-examined; and
(2)	that the Court did not consider the strength of the other grounds of appeal before deciding to order a retrial.

6. These assumptions are incorrect.  It is, we believe, perfectly clear, from the Reasons for Judgment that we addressed in some detail several areas of concern that had been placed before us, and came to a conclusion in respect of them, in particular:

(1)	the apparent illogicality of the judge accepting reliability as to one facet of the girl’s allegations, but not as to the other (see paragraph 13);
(2)	the failure of the judge to satisfy himself that the reliability of her allegations had not been contaminated by a conversation she had had with her godmother before the second interview (see paragraph 16); and
(3)	the failure to view the videotapes interview.

7. Whether each ground on its own would have been such as to persuade us to allow the appeal in the absence of the others we cannot at this stage say and it is correct that the one that exercised us most was the last.  But having expressly analysed and come to conclusions about the other grounds in our judgment, it is odd now to suggest that we did not address them when we came to consider the issue of a retrial.  The issue that we did not address in the Reasons for Judgment was the effect of the medical evidence, and that is because it was not in the circumstances necessary to do so.  The only evidence we had before us which cast doubt on the evidence at trial as to the transmission of gonorrhoea through sexual contact was fresh evidence filed for the purpose of the appeal which we had admitted de bene esse.  In the course of oral argument, it was made clear that counsel for the respondent would wish, if the matter became determinative, to have the opportunity of cross-examining the deponent who lived in Australia.

8. It is noteworthy that in his written submissions on the question of retrial, counsel for the applicant addressed a number of these matters, that is to say, the various issues we dealt with in our judgment, in particular the unsatisfactory nature of the complainant’s evidence and the suggested improper influence in the interval between her two interviews.

9. To give a flavour of the submissions before us, it is contended in relation to the illogicality of some of the judge’s thought processes that: “Given the principle that any benefit of the doubt must be resolved in favour of an accused, the conviction was therefore unsafe in any event and thus no retrial should have been ordered.”  This, with respect, is not logical for if the conviction was based upon an error by the judge, it does not follow that a retrial should not have been ordered.  A similar point is made in relation to the judge’s failure to satisfy himself that the reliability of the second interview had not been contaminated.  Again, this was a failure in approach by the judge.

10. If it be said that, despite the fact that at the appeal hearing counsel agreed to make submissions as to a retrial before we handed down our Reasons, we ought nonetheless, strictly speaking, to have afforded counsel the opportunity of making further representations about the retrial after they had received the Reasons for Judgment, the proposed certificate, as we read it, does not go to that point.  But, in any event, in this particular case counsel did in his written submissions address points of concern about the reliability of the verdict other than the single point upon which it has been assumed we relied and, as our judgment makes clear, we in fact addressed in our Reasons the weight of those points, save for the medical one, although we in fact considered that one in deciding whether or not to order a retrial.

11. In the circumstances, we refuse the certificate sought.