HAU KING YEUNG v. HKSAR

FAMC No. 1 of 2007

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 1 OF 2007 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 375 OF 2005)

_____________________

_____________________

______________________

D E T E R M I N A T I O N

______________________

Mr Justice Bokhary PJ:

1.  This applicant seeks leave to appeal to the Court of Final Appeal against the Court of Appeal’s judgment affirming his conviction, at his third trial, for a murder committed on 17 December 1996.  It was his third trial because his conviction at the first trial had been quashed by the Court of Final Appeal which ordered a retrial, and his conviction at the second trial had been quashed by the Court of Appeal which ordered another retrial. 

2.  Much of what the applicant seeks to argue before the Court of Final Appeal appears from the questions of law which he asks us to certify, the Court of Appeal having refused to certify them.  These questions read : –

“(1) whether, as a matter of law or practice, it can ever be right for an accused to be tried for the third time on the same charge when there has been inordinate delay between the event, the subject of the charge and the third trial; and

 (2) if the answer to the Question 1 is in the affirmative, whether as a matter of law, the judge in his summing-up should direct the jury to the risk to prejudice caused by the delay.”

3.  The applicant also seeks our leave to appeal on the “substantial and grave injustice” ground, as to which he repeats the points indicated by those questions and adds complaints to the effect that a juror had been wrongly discharged during the trial and that he i.e. the applicant had been wrongly accused in cross-examination of lying.

4.  The reasons for refusing certification given by Stuart-Moore VP for the Court of Appeal were these :

“The first question presupposes inordinate delay which we understand to mean a delay such as to prejudice a fair trial, in which case the question is hardly one that requires determination.  Similarly, with the second question which is posed, it cannot be suggested that it is never right to order a third trial as this decision will be determined by issues which are entirely case-sensitive.”

Those reasons go, as it seems to us, essentially to the first question.  And on that question they are sound.  As for the second question, it is really a matter for consideration under the “substantial and grave injustice” ground rather than the “point of law” ground.  We, too, refuse certification.

5.  On the “substantial and grave injustice” ground, having studied all the material put before us and having considered all the arguments urged on behalf of the applicant, we find ourselves unpersuaded that the way in which he was tried and his conviction was affirmed by the Court of Appeal involved – whether by reference to doubt as to safety, oppression or anything else – any departure from accepted norms such as would justify the grant of leave to appeal to the Court of Final Appeal on the “substantial and grave injustice” ground. 

6.  Accordingly, leave to appeal is refused.