HKSAR v. CHIONG BERNARD LEOCARIO

CAC C 402/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 402 OF 2010

(ON APPEAL FROM HCCC NO. 165 OF 2010)

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D E C I S I O N

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Hon Yeung VP (giving the decision of the Court):

1.  On 22 August 2012, we allowed Chiong Bernard Leocario’s (the defendant) appeal and we quashed his conviction.  We were of the view that the defendant did not have a fair trial because of the way the prosecution conducted the case and the way the judge presented the case to and directed the jury.

2.  The prosecution applies for an order for re-trial under section 83E of the Criminal Procedure Ordinance (Cap 221).

3.  Whether to order a re-trial is a matter of discretion and in the exercise of the discretion, the court must balance the relevant factors to ensure that justice will be done to the parties.  It is of course in the public interest that offenders should be brought to justice and punished, but that is not the only consideration.  

4.  The evidence against the defendant came chiefly from the victim, who, according to the prosecution, having left Hong Kong already, is prepared to return to Hong Kong to give evidence against the defendant.

5.  We do not agree with Ms Panesar’s suggestion that because the defendant was not at fault, the prosecution should not be allowed to have a second bite of the cherry and that the defendant should not have to go through the stress of a re-trial all over again.  Ms Panesar’s complaints, unfortunately, are present in every case when a re-trial order is made.

6.  However, we agree with Ms Panesar’s observation that it was unusual for the victim to text the defendant shortly after the alleged rape, inviting him to her room, saying “if you want to be happy, I will make you happy, you come to my room.  Anyway, you have ruined my family”, and “Mr Chiong, where are you now?  I have been waiting for you here.  Why don’t you reply to my text message?”

7.  Some of those text messages could not be located from the victim’s phone although she denied that she had deleted them.  Other text messages between the victim and the defendant also appeared to be inconsistent with the victim’s allegation of rape.

8.  We bear in mind that the defendant had already put a positive case to the victim and should there be a re-trial, the victim would have the benefit of knowing what had been put to her during cross-examination.

9.  According to one of the witnesses (Auntie Rose), when she met the victim on 12 December 2009, two days after the alleged rape took place, the victim looked scared and asked for help whereas another witness, who was also present, said the victim looked normal.  Auntie Rose will not be available as a witness and the absence of Auntie Rose’s evidence, being possible evidence of a recent complaint, weakens the prosecution case.

10.  We also take into consideration that the matter has been hanging over the defendant’s head for almost three years and that he had already been detained for over 20 months, which is equivalent to a 2½-year sentence.

11.  We are not persuaded that it is a proper exercise of our discretion to order a re-trial and we dismiss the application.  Having heard submissions from both parties, we also dismiss the defendant’s application for costs.