HKSAR v. LAU YUK WAN

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1996, No.389
(Criminal)

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D E C I S I O N

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Power, V.-P. (giving the decision of the Court):

1. This is an out of time application for costs. A question has arisen as to whether or not this court is functus officio but that is not a matter which we need to determine as the application would clearly fail on the merits.

2. The applicant appealed against his conviction and that appeal succeeded. A re-trial was ordered. The applicant, in the course of that appeal, suggested that a Mr. Schade would be a vital defence witness and that the prosecution had allowed him to leave the jurisdiction without taking a statement from him.

3. In the judgment of the Court of Appeal, the following passage appears:

"It would also appear that the prosecution were aware of the fact that shortly after 24th September, he, Mr. Schade, would be returning to the U.S.A. Having regard to the fact that the applicant had immediately indicated that Mr. Schade would be of assistance to him and in his defence, Mr. Grossman, for the applicant, submitted that there was a clear duty imposed on the prosecution to obtain a statement from him."

4. The judgment goes on:

"The simple fact of the matter is that we do not know what Mr. Schade might have said. It would not be right for us to attempt to speculate what his evidence may have been and there must be at least a possibility that his testimony may have cast doubts upon the case being made out by the prosecution."

5. The court then quashed the conviction and ordered a retrial.

At the retrial Mr. Schade was called and his evidence was of no assistance whatsoever to the applicant. Indeed, it was wholly unfavourable to him and was one of the several matters relied upon by the prosecution as proof of the guilt. The applicant must, at all time, have been aware of the true position. His original appeal and his retrial have occasioned considerable expense to all concerned in circumstances where he was aware that the second trial, properly conducted with the evidence of Schade, would, in all likelihood, result, as it did, in a second conviction. There is no merit whatsoever in this application for costs and it is, therefore, refused.