ATTORNEY GENERAL v. CHUM KIN MAN

IN THE COURT OF APPEAL

1987. No. 254
(Criminal)

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JUDGMENT

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Silke, V.-P.:

1. On 25th November 1986, Chum Kin Man was acquitted on eleven charges of false accounting, an acquittal with which the Crown was dissatisfied. A further eleven charges were left on the file. The Crown then sought to express its dissatisfaction through a Case Stated.

2. A Case was drawn up under the provisions of section 84 of the District Court Ordinance and dated the 18th May 1987.

3. The matter first came before this Court on 18th June 1987 when the Respondent, not having been served in sufficient time, was unable to prepare his argument and the matter was adjourned. Guidance was then given by a differently constituted Court and counsel were instructed to collaborate on the Case.

4. The matter came before this Court, as present1y constituted, on 21st August 1987 when a second version of the Case Stated dated the 13th July 1987 was for our consideration. On that occasion, we heard arguments from the Crown and Mr. Polson, who appears for the Respondent, disputed items in the Case as, indeed, did the Crown. Upon those matters being raised an adjournment was asked for and granted so that the matter could be clarified.

5. Between then and today there appears to have been certain correspondence between the trial judge and counsel none of which was brought to our attention until this morning. The result of that was yet another version of the Case Stated containing various amendments. A document was produced to us which we understood contained those amendments but which it has transpired does not. Apart from that, two particular paragraphs are in dispute - paragraphs 12 and 16.

6. Between the three versions of the Case as stated - original, amended and proposed – there are major differences in evidential findings and also changes of emphasis. We find it impossible on these documents as they now stand to render any verdict which would do justice to the parties and by that we mean both the Crown and the Respondent. We feel that the differences to which I have referred in the factual findings, and in the emphasis which has been given to certain evidence, make it difficult for the judge now, were we to send the matter back to him yet again persuant to section 109 of the Magistrates Ordinance - which has been incorporated into the Case Stated procedure in the District Court by section 84 of the District Court Ordinance - to produce a final version upon which we could with confidence rely.

7. Section 84 of toe District Court Ordinance provides that on a hearing of the appeal:

"the Court may reverse the verdict or order and direct that the trial be resumed or that the accused be retried as the case may be, or find him guilty, record a conviction and pass such sentence on him as might have been passed on him by a judge."

8. Of the matters which lie within our power under that particular provision, we have in mind, in these unusual circumstances, a re-trial. Mr. Polson has objected to this and has directed our attention to the lengthy period between the first appearance of the Respondent in Court, the course of the matter since then, that which has transpired today and the likely difficulties. We feel, however, that this matter is one which should be re-tried so that if in the course of that re-trial matters of law do arise then a Case can he properly state for our consideration in respect of them. We do not feel ourselves, even with further amendments, to he in that position now.

9. We would therefore order a re-trial in the District Court on a fresh charge Sheet.