MOK KIN KAU v. HKSAR

FACC No. 8 of 2007

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 8 OF 2007 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 1161 OF 2006)

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Mr Justice Bokhary PJ :

1.  This is the judgment of the Court.

2. An uncontested appeal can be allowed without putting any party to the expense of an oral hearing if it can readily be seen, even without the assistance of oral argument, that the appeal should be allowed.  Where costs remain in issue, they can be dealt with on written submissions.  In this uncontested appeal, costs are not in issue.

3. The order appealed against is one whereby the appellant would be tried for the third time in the Magistrate’s Court on a charge that he had, three years and three months ago on 30 September 2004, assaulted a woman employed at his home as a domestic helper, occasioning her actual bodily harm.  On 6 April 2005 (following a trial on 11, 14 and 19 March 2005) the appellant was convicted for the first time.  He was sentenced to a term of two months’ imprisonment suspended for 18 months.  On 18 October 2005 the High Court (Deputy Judge Pang) quashed that conviction and ordered a retrial : in other words, a second trial.

4. At the second trial (which was heard before another magistrate on 9, 10, 11 and 20 October 2006) the appellant was, on 3 November 2006, again convicted.  This time he was sentenced to 200 hours’ community service.  He has completed such service.  On 13 August 2007 (following a hearing on 18 May 2007) the second conviction, too, was quashed by the High Court (Tong J).  After entertaining written submissions by the prosecution seeking another retrial and written submissions by the defence opposing that course, Tong J, on 6 September 2007, ordered that the appellant be retried again : in other words, that he be tried for the third time.

5. Each conviction had been quashed on the ground that it was unsafe and unsatisfactory.  This was not because the prosecution’s evidence was considered inherently weak.  It was because each magistrate was considered to have made material errors in the course of evaluating the whole of the evidence.  Neither the prosecution nor the defence is to blame for that.

6. In ordering a third trial, Tong J said this :

“ Whether an order for retrial should be made in this case is not an easy decision.  I fully appreciate [defence counsel’s] submission that the appellant had already faced two trials, two appeals and had served the Community Service Order for an offence which could not be said to be very serious.  However, this was not an ordinary case of assault.  It involved an employer allegedly committing an act of violence on a domestic helper. 

 I agree with [prosecuting counsel] that the alleged victim’s evidence, if properly assessed and believed, could support a conviction.  It appeared that both appeals were allowed on the basis of the magistrate’s evaluation of the evidence rather than any inherent weakness of her evidence.  I also accept that for a third trial, the victim would have had some ‘advantage’ due to the previous cross-examinations.  However, I am sure both the prosecution and defence could be able to skillfully deal with all these relevant matters and fairly present the evidence before the magistrate for his or her consideration if a retrial is ordered.

 Having weighed the various factors carefully, I came to the conclusion that a retrial would be justified in this case.” 

7. Lord Diplock took a different approach in delivering the advice of the Privy Council in Dennis Reid v. R [1980] AC 343.  So did Rhind J in deciding R v. Chau Mei Ling  [1981] HKC 542, an appeal from a magistrate.  In Dennis Reid’s case Lord Diplock pointed out (at p.350C) that “any criminal trial is to some extent an ordeal for the defendant, which the defendant is not to be condemned to undergo for a second time through no fault of his own unless the interests of justice require that he should do so.”  And in Chau Mei Ling’s case Rhind J, declining to order a third trial, said (at p.545B-C) that “[e]ven for an offence as serious as murder, it would be unusual to order an accused to stand trial as many as three times”.  Of course whether the interests of justice require another trial depends on all the circumstances of the case, and so does whether an unusual course is warranted.

8. On 6 November 2007 the Appeal Committee granted the appellant leave to appeal to us under the “substantial and grave injustice” limb of s.32(2) of our statute.  That was done on the basis of it being reasonably arguable that a third trial in circumstances like these would constitute a departure from accepted norms to the disadvantage of the applicant (now the appellant) so serious as to constitute a substantial and grave injustice.  On 28 November 2007 the appellant’s printed case was filed. The respondent did not file a printed case.  On 19 December 2007 Mr Simon Tam informed the Registrar, first on the telephone and then by a fax copied to the appellant’s solicitors, that the respondent, “after reviewing all the circumstances … has decided that it would not be in the public interest for the appellant to undergo yet another trial”.  Accordingly, Mr Tam indicated, the prosecution would not contest the appeal.  On 27 December 2007 the Registrar was informed that the parties were in agreement that the respondent do pay the appellant his costs (to be taxed if not agreed) of this appeal and the application for leave bring it.

9. In Hong Kong the power to order the retrial of an accused was introduced at the end of the nineteenth century.  This was by way of s.78A(3) of the Criminal Procedure Ordinance 1899.  Three and a half decades passed before the power was invoked for the first time.  It was first invoked (unsuccessfully as it happens) in Cheng Hing U v. R (1935) 27 HKLR 53.  Since then it has been invoked on many occasions, sometimes with success and sometimes not.

10. Retrials have their place in our criminal justice system.  But bringing matters to a conclusion without undue delay is an important feature of that system.  So is the avoidance of oppression.  These notions have shaped the accepted norms of our courts’ practice as to retrials.

11. Sometimes a trial is resumed after being aborted, eg where the jury has to be discharged because a witness blurted out something incurably prejudicial.  Depending on the circumstances, several resumptions may well prove necessary and be warranted.  We are not concerned with that sort of situation in this case. 

12. In the absence of a special and compelling reason for doing so, putting a person on trial for the third time after two concluded trials and appeals and after he has already served the whole of his sentence would be a departure from accepted norms to his disadvantage so serious as to constitute a substantial and grave injustice. 

13. Whether as alleged victims or alleged perpetrators, domestic helpers do not form a special category for the purposes of retrials.  But, as we have seen, Tong J regarded the case as “not an ordinary case of assault” because “[i]t involved an employer allegedly committing an act of violence on a domestic helper”. 

14. It was necessary to examine all the circumstances in order to determine if the interests of justice were so compelling that they required the unusual course of a third trial after two concluded trials and appeals and the serving of the whole sentence.  Tong J did not conduct such an examination.  Nor did he consider whether a third trial in such circumstances would be a departure from the accepted norms of our courts’ practice as to retrials.  Consequently his exercise of discretion miscarried, and must be reviewed. 

15. Upon such review and the application of the accepted norms indicated above to the circumstances of the present case, it is readily apparent that the order for retrial appealed against must be set aside on the “substantial and grave injustice” ground.  The prosecution is correct (i) in its concession that a third trial in these circumstances would not be in the public interest and (ii) in its concession as to costs.

16. For the foregoing reasons, the appeal is allowed to set aside the order for retrial appealed against and to award the appellant his costs (to be taxed if not agreed) of this appeal and the application for leave to bring it.