HKSAR v. TSE HOI PAN, DOMINIC

CACC 368/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 368 OF 2006

(ON APPEAL FROM HCCC NO. 18 OF 2006)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1. On 18 December 2007 this Court delivered judgment in this case by which we granted leave to appeal against conviction, and treated the hearing of the application as the appeal, quashed the appellant’s conviction for rape.  We said that we would hear counsel on the question of a retrial.

2. By letter dated 31 December 2007 we notified counsel that, given the indication at the end of the appeal hearing the leading counsel for the appellant would be abroad for some two months, we would receive from counsel written submissions on the question of retrial.  We intimated however in that letter that there would be an oral hearing on the question should either counsel so request.  In the event we have received four written submissions by counsel and neither has requested an oral hearing although we have received short oral submissions this morning by way of supplemental points.

3. Counsel for the respondent has indicated that the prosecution is able to proceed with a retrial and suggests that, if proved, this was a serious case of rape.  He points to the fact that there was uncontested evidence of relatively extensive injuries to the complainant, bloodstains on the bedding material, uncontroverted evidence that the appellant and the complainant were together in the room where violence took place, video evidence of the complainant in a drowsy and confused state before entering the hotel room and evidence of recent complaint when the complainant appeared undressed at the reception counter of the hotel in a markedly distressed condition.  Counsel contends that the interests of justice require a retrial.

4. Counsel for the appellant draws our attention to a number of authorities on the principles to be applied when considering the question of a retrial; points to the fact that the appellant has already served 16 months’ imprisonment and stresses in particular that it is unlikely that Ms Chak to whose evidence our judgment is extensively devoted will be called by the prosecution at the second trial if there is one, thereby depriving the defendant of material with which he might suggest that she and the complainant put their heads together falsely to incriminate the appellant in an allegation of spiking her drink with drugs.

5. We have taken all these matters into account.  If Ms Chak is at all available she will, we are informed today by counsel for the respondent, be made available for cross-examination but in any event the point stressed by counsel for the appellant can cut several ways: Ms Chak withdrew only one aspect of her testimony so that if, as we thought might have been the case, the jury in fact relied on it at all, its absence in the second trial – if it is to be absent – would to that extent assist the appellant.  In any event, the allegation of rape is supported by the extensive injuries on the complainant, and her recent complaint and state of considerable distress immediately after the event is consistent with her allegation.

6. We take the view that it is in the interests of justice that there should be a retrial upon the one count of rape in respect of which the original trial proceeded; and we make an order accordingly.

7. We shall hear counsel as to the costs of the appeal and of the trial below and on the question of bail pending the retrial.