SO MUN SUNG v. R.

IN THE COURT OF APPEAL

1992, No.455
(Criminal)

HEADNOTE

Applicant pleaded guilty to three counts of wounding with intent and was sentenced to 12 years on each count, sentences to be concurrent. Appeal against conviction on ground that he was a Chinese national and that his offences occurred within Hong Kong waters by means of a non-British ship. The Governor's consent under s.23(C) of the Crimes Ordinance which had not been given was needed for the institution of proceedings. This point was conceded by the Crown and the issue was whether a Court of Appeal had jurisdiction to order a retrial under s.82 of Criminal Procedure Ordinance, Cap.221. The Court held that s.83 and s.83E of that Ordinance did apply to nullities and ordered a retrial on a fresh indictment.

IN THE COURT OF APPEAL

1992, No.455
(Criminal)

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J U D G M E N T

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Power, V.-P.:

1. This is the judgment of the Court.

2. The applicant is a citizen of the People's Republic of China. He was arrested on 8th January 1991 on board a Chinese vessel in Tolo Harbour after the vessel had been chased by police launch. It was suspected that it was involved in smuggling a motor vehicle. During this chase the applicant steered his vessel into collision with the police launch and three police officers were seriously injured. He pleaded guilty to three counts of wounding with intent and was sentenced to 12 years on each count and the sentences were ordered to be concurrent. He now appeals against those convictions on the ground that he is a Chinese national and the offences occurred within Hong Kong waters by means of a ship which was not a British ship and that the Governor's consent for the institution of proceedings was required under s.23(C) of the Crimes Ordinance and that this consent had not been obtained. The Crown conceded that consent was necessary and that none was obtained and that the appeal must therefore succeed. The trial, and the committal for trial, were nullities.

3. The issue before us was whether we have jurisdiction under s.82 of the Criminal Procedure Ordinance to order a re-trial under s.83E of that Ordinance if there was no valid trial before a court of competent jurisdiction.

4. The applicant was out of time in his appeal against conviction but leave was given at the outset without opposition from Miss Crabtree who appeared for the Crown.

5. Mr. Dykes submitted the failure to obtain the necessary consent made the trial and conviction a nullity. He accepted, as was held by Bokhary J.A. in the application by Tse Sun Mui seeking leave to apply for judicial review (unreported, 1993 No.90 Civil Appeal), that an appeal did lie from a conviction that was a nullity but submitted that Bokhary J.A. was wrong when he went on to rule that an appeal court in such circumstances had power to order a retrial arguing that s.83E had no application. The importance of establishing that this court could not order a re-trial lay in the fact that if no re-trial was ordered by virtue of s.83 the quashing of the conviction would operate as a direction to the court of trial to enter a judgment and verdict of acquittal.

6. This section reads as follows:

"Power to order retrial:

(1) here 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.

(2) A person shall not under this section be ordered to be re-tried for any offence other than -

(a) the offence of which he was convicted at the original trial and in respect of which his appeal is allowed as mentioned in sub-section(1);

(b) an offence of which he could have been convicted at the original trial on an indictment for the first-mentioned offence; or

(c) an offence charged in an alternative count of the indictment in respect of which the jury were discharged from giving a verdict in consequence of convicting him of the first-mentioned offence."

7. He submitted that if a person were ordered to be re-tried under s.83E the consequences would be (i) that he would not have had the opportunity of having a magistrate conduct an examination at a committal proceeding into the adequacy of the prosecution case against him; (ii) that the trial judge could admit in evidence at a re-trial, by virtue of the 6th Schedule of the Criminal Procedure Ordinance, testimony which would not have come into existence if the first trial, which was a nullity, had not taken place. (This, however, was not a consideration in the present case as the applicant had pleaded guilty.); (iii) that he could be sentenced to a longer term of imprisonment if convicted on a re-trial.

8. The 6th Schedule insofar as it is applicable reads as follows:

"Procedural and other Provisions Applicable on Order for Retrial

Depositions

1. On a retrial s.70 of the Evidence Ordinance (Cap.8) (admissibility in evidence in criminal proceedings of deposition of person dead, etc.) shall not apply to the depositions of any person who gave evidence at the original trial or to any written statement by such a person tendered under s.81A of the Magistrates Ordinance (Cap.227) in the committal proceedings before the original trial; but a transcript of the record of the evidence given by any witness at the original trial may, with the leave of the judge, be read as evidence -

(a) by agreement between the prosecution and the defence; or

(b) if the judge is satisfied that the witness is dead or unfit to give evidence or to attend for that purpose, or that all reasonable efforts to find him or secure his attendance have been made without success;

and in either case may be so read without further proof, if verified in accordance with rules and orders made under s.9.

Sentence on conviction at retrial

2.

(1) (2)

where a person ordered to be retried is again convicted on retrial the court before which he is convicted may pass in respect of thence any sentence authorized by law. without prejudice to its power to impose any other sentence, the court before which an offender is convicted on re-trial may pass in respect of the offence any sentence passed in respect of that offence on the original conviction notwithstanding that, on the date of the conviction on retrial, the offender has ceased to be of an age at which such a sentence could otherwise be passed."

9. We find no merit in the suggestion that the appellant could be sentenced to a longer term of imprisonment. While this may be true it applies equally to all applicants with regard to whom a re-trial is ordered.

10. We further think it arguable that, if the original trial was a nullity, provision 1. of the 6th Schedule would have no application. It seems to us that it could be contended that the words "the original trial" used in provision 1. referred to a valid trial and would have no reference to a trial which was a nullity.

11. This however was not the real thrust of Mr. Dykes' argument. He submitted that the legislature could never have intended to deprive a person whose conviction is declared a nullity of the right to proper process which includes the holding of committal proceedings. While conceding that the right to committal proceedings was not an absolute one, the Attorney General can always proceed by way of voluntary bill, he submitted that prima facie every accused was entitled to such a hearing and magisterial determination and that the legislature could never have intended summarily to deprive such a person of that right. Subsidiary to this argument he urged that the legislature would not have intended to place such a person in the further jeopardy of an increased sentence. He contended, referring to legislation in other jurisdictions, that, had the legislature intended s.83 and 83E to apply to nullities, it would have said so. He referred to a number of English cases which dealt with the once vexed question of the power of English courts to order a venire de novo. We did not find ourselves materially assisted by those authorities.

12. It was further argued by Mr. Dykes that where the prior consent of an officer of the executive arm is required to institute proceedings any order made by a Court of Appeal in circumstances such as obtained here for a re-trial under s.83E would be both premature and constitutionally inappropriate. We find no merit in this argument. An order that the appellant be tried on a fresh indictment must be taken to mean upon a fresh indictment presented after proper consent had been given. Commonsense requires that the request by the Crown to us to order a new trial must be taken as an indication that the Attorney General is cognisant that the consent will be given and intends to proceed with the prosecution. Mr. Dykes sought also to argue that the term "re-trial" meant a trial subsequent to an earlier trial and that in circumstances where the earlier proceedings were a nullity there could be no re-trial.

As to this last argument we reject the suggestion that the re-trial should be given the strict interpretation urged by Mr. Dykes. Further we see no merit in the argument that the legislature could not have intended to deprive a successful appellant whose earlier trial was shown to be a nullity of the benefit of another committal proceeding. The fact of the matter must always be that he has already had a committal proceeding, albeit an invalid one, which has fully appraised him of the extent of the Crown case. We are quite unpersuaded that, given that an appeal from proceedings which were a nullity does lie to this court, s.83E must be interpreted as having no application to such an appeal. We are satisfied that Bokhary J.A. was right to say what he did in Tse Sun Mui's case. It might well be that an appeal court, exercising the discretion given to it under s.83E(1) would refuse in the interests of justice to order a re- trial if, for example, upon examination of the record it was shown that there was such weaknesses in the Crown case that the appellant should not again be placed in jeopardy. That, however, would be a matter for the discretion of the court. We order that the appellant be tried on a fresh indictment before a judge of the High Court.