HKSAR v. LI YANHONG

[English Translation – 英譯本]
CACC134/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL APPEAL NO 134 OF 2014

(ON APPEAL FROM HCCC 271 OF 2013)

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REASONS FOR JUDGMENT

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Hon Poon J (giving the Reasons for Judgment of the Court):

Introduction

1.  The applicant was indicted of one count of trafficking in a dangerous drug and had been on trial twice in the High Court.

2.  The first trial hearing commenced on 27^th February 2012.  On 5^th March of the same year, the applicant was convicted and sentenced to imprisonment for 23 years and 6 month.  The applicant appealed against her conviction.  On 3^rd July 2013, the Court of Appeal allowed the appeal and ordered the case to be remitted for retrial.

3.  After retrial, the applicant was convicted for the second time and she was sentenced on 7^th April 2014 to imprisonment for 23 years and 6 months.  The applicant applied again for leave to appeal against conviction.  Upon handing down the judgment on 12^nd February 2015, we granted the applicant leave to appeal and, treating the application as the appeal proper, we allowed the appeal.  We also quashed the conviction and sentence on the applicant.

4.  The respondent sought for a retrial whilst the applicant opposed the retrial application.

5.  After hearing on 24^th June 2015, we made an order for the case to be remitted to the Court of First Instance to be retried.  We now give the reasons for our decision.

Legal Principle

6.  Section 83E (1) of the Criminal Procedure Ordinance[1]  provides:

“(1) Where 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.”

7.  As stipulated in section 83E(1) of the said ordinance, when the court decides whether or not to order for a retrial, the critical issue that needs to be considered is whether the interests of justice call for a retrial.  And the interests of justice are not confined to the interests of the prosecutor and the accused in the particular case.  They also include the interests of the public in Hong Kong that those persons who are guilty of serious crimes should be brought to justice and should not escape it merely because of a technical blunder by the judge in the conduct of the trial or his summing-up to the jury: See Ting James Henry v HKSAR[2].

8.  In examining whether the interests of justice so require, it is necessary for the court to consider the actual circumstances of the case as well as all the relevant factors, including the seriousness of the offence, the history of the proceedings, the evidence for both prosecution and defence, the complexity or otherwise of the trial, the reasons for the success of the appeal, the lapse of time since the alleged offence and since the trial and the length of the sentence which the appellant may have served.  Then it is necessary for the court to weigh the public interest in ensuring that those guilty of serious crime are brought to justice against the effects of putting a successful appellant through the ordeal of a retrial.  If after all these matters have been considered, no reasonable prospect of a conviction after a new trial is demonstrated, retrial would not be ordered: See R v Holgate (No 2)[3].

9.  In the present case, should we order a retrial, it would be a second retrial.  Mr Leung, counsel acting for the applicant, submitted that the court in principle should not order a second retrial.  He at one point even contended that the court could not order a retrial for the second time, citing the Mok Kin Kau v HKSAR[4] in advancinghis argument.  However, we must emphasize that Mr Leung’s contention is wrong.

10.  In the case of Mok Kin Kau, the defendant was convicted twice of assault occasioning actual bodily harm by the magistrates.  Each conviction was subsequently quashed on appeal.  After the first trial hearing, the defendant was sentenced to two months’ imprisonment, suspended for 18 months; at the second trial hearing, he was sentenced to serve 200 hours of community service.  When the case went to the appellate court the second time, the defendant had already served the term of his community service order.  The judge of the Court of First Instance ordered a third trial, upon which the defendant took the case to the Court of Final Appeal. In the context of such unusual circumstances, the Court of Final Appeal upon applying the aforesaid legal principle[5], pointed out that the interests of justice have to be so special and compelling before an unusual course could be adopted by ordering a second retrial, which will place a defendant on trial for the third time[6] after two concluded trials and successful appeals and after he had already served the whole of his sentence.  Nevertheless, the Court of Final Appeal did not mention in its judgment that the court in principle could not order a second retrial.  Hence, it does not support Mr Leung’s argument.

11.  On the contrary, relevant authorities expressly pointed out that the court has had the jurisdiction to order a second retrial. In R v Bell[7], it was necessary for the Court of Appeal of England to explore the issue of whether a second retrial or any further retrial would constitute abuse of process.  Having examined the precedents in England, as well as authorities in other common law jurisdictions, the Court of Appeal of England noted that the principle which applied was best encapsulated in the observations of Lord Bingham l in the judgment delivered by him in Forrester Bowe v The Queen[8], as seen in the extract below[9]:

“It is a common practice for prosecutors in England and Wales to offer no evidence against a defendant if two previous juries have been unable to agree… but that is no more than a convention, as recognised by the Court of Appeal… in R v Henworth [2001] 2 CR App R 4. It may well be that the prosecuting authorities, having failed to obtain a conviction even by a majority on two occasions, judge that a further trial will not have a reasonable prospect of culminating in a conviction. It is in the first instance for the prosecutor to judge whether, taking account of all relevant considerations, the public interest is better served by offering no evidence or by seeking a further re-trial. There is plainly no rule of law in this country which forbids a prosecutor from seeking a second re-trial…. There may of course be cases in which, on their particular facts, a second retrial may be oppressive and unjust…. Whether a second retrial should be permitted depends on an informed and dispassionate assessment of how the interests of justice in the widest sense are best served. Full account must be taken of the defendant’s interests. …. Account must also be taken of the public interest in convicting the guilty, deterring violent crime and maintaining confidence in the efficacy of the criminal justice system”.

12.  In the case of Bell, the Court of Appeal of England specifically pointed out that a second retrial should be confined to a very small number of cases in which a crime of extreme gravity had undoubtedly occurred, and the evidence that the defendant committed the crime on any fair minded objective judgment remained very powerful.

13.  In the recent case of HKSAR v Bian Zhenju[10], the applicant opposed the application for retrial, we ( differently constituted[11]) nonetheless opined that in the interests of justice, it was necessary to order a third retrial.  The applicant of that case trafficked in 3.45 kg of heroin hydrochloride by importing them from Kuala Lumpur into Hong Kong via the Hong Kong airport.  She was sentenced to 27 years’ imprisonment, and by the time when the appeal was eventually allowed, she had already been jailed for more than four years.  At that hearing, we had already stressed that the offence that the applicant was charged with, namely, trafficking in 3.45kg of heroin hydrochloride by importing them into Hong Kong was extremely serious.

14.  Undoubtedly, we are empowered with the jurisdiction under appropriate circumstances to order a second retrial, although it may be an unusual course to do so.

The present case

15.  In the present case, we had already considered the various factors below:-

(1) The offence involved in the present case was extremely serious.  The applicant was alleged of trafficking in large quantities of dangerous drug, namely, 1.44 kilograms of mixture containing 0.96 kilogram of heroin hydrochloride by importing them from Malaysia into Hong Kong.

(2) The applicant was arrested on 17^th January 2011.  As mentioned in the above, with her appeal allowed on 3^rd July 2013, the applicant succeeded in having her conviction in the first trial hearing before another judge overturned on the ground that the trial judge had misdirected the jury.  Then in the second trial hearing on 4^th April 2014, the jury reached a unanimous verdict of finding the applicant guilty, and on 7^th April of the same year, the applicant was sentenced to imprisonment for 23 years and 6 months.

(3) The evidence adduced by both the prosecution and defence in this case was not complicated: it was the allegation of the prosecution that the applicant with knowledge brought with her to Hong Kong the luggage containing the dangerous drug hidden inside the secret compartment; on the other hand, the applicant said that the sample clothing was consigned to her by someone for her to bring to Mainland China inside the luggage she was carrying.  She said that she had no knowledge that there was secret compartment in her luggage and that there was dangerous drug placed inside.

(4) We allowed the applicant’s appeal this time entirely because we were of the view that the trial judge had erred first in (a) not having adopted an objective approach when participating in cross-examination of the applicant whereby it would lead an informed bystander listening to the trial to conclude that the applicant had been deprived of a fair trial; and (b) regarding “shut eye” or on the issue of “constructive knowledge” had inappropriately misdirected the jury.  Therefore, the success of the appeal was totally unrelated to the strength of the evidence of the prosecution or the conduct of the prosecution in the trial.

(5) The present case occurred on 17^th January 2011, which was some four years ago.  The last trial hearing was concluded about one year ago (7^th April 2014) and the applicant had already also served about four years of sentence.

(6) The case put forward by the prosecution was simple and straightforward, and the evidence adduced was sufficient.  All the prosecution witnesses were able to attend court to give evidence when the case went on retrial, and the quantity of dangerous drug involved in the case was large ( nearly one kilogram of pure heroin).  The defence did not dispute the fact that the applicant did carry with her the dangerous drug hidden in her luggage.  The only contention between the parties was whether the existence of the dangerous drug was in her knowledge.  This apparently was a factual dispute to be determined by the jury.  Upon examining all the facts in this case, we concluded that there was reasonable prospect of a conviction.

(7) We had also considered the issue concerning the ordeal faced by the applicant if she has to be undergo a third trial.  Regarding this point, Mr Leung did not put forward any substantial argument in his submission[12].  It had come to our attention that the applicant due to the stress induced by the legal proceedings has been suffering from adjustment disorder syndrome, but after taking prescribed medication, her mental condition has already stabilized.  Her mental ability had not been damaged nor was she suffering from any mental illness or other serious problem.  Her mental condition also renders her fit for plea. For the particulars in this respect, one can refer to the relevant psychiatric and psychological reports[13]. We considered that the mental condition of the applicant did not provide sufficient grounds for opposing the application of a second retrial.  Mr Leung did not persist on any specific stance regarding this matter either.

16.  Having considered all the relevant factors, as well as weighing the public interest and the interest of the applicant, we concluded that it was proper to make an order for a second retrial.

Conclusion

17.  We therefore ordered the case to be remitted to the Court of First Instance to be retried, and ordered the applicant to be remanded in custody pending retrial.