THE QUEEN v. LAW SHING HUEN

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J U D G M E N T

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Kempster, J.A. :

1. On 26th July 1988 the report of the Judicial Committee bearing the previous day's date was considered by Her Majesty in Council and approved. It was ordered that the appeal of Law Shing Huen from the judgment of this Court given on 4th February 1984 should be allowed, that his conviction for murder should he quashed and that the Hong Kong Court of Appeal should determine whether or not there ought to be a retrial.

2. Law, together with another man who has not pursued any appeal, was convicted of murder on 18th March 1985 by Deputy Judge Hopkison (as he then was) on the verdict of a jury. The critical question which arose at the trial and in the subsequent appeals both in Hong Kong and in London was whether or not the record of a particular interview between a Senior Inspector and Law should have been admitted in evidence at trial as it was. Once admitted, as the judge directed the jury, it was sufficient in itself to ground the conviction and, in any event, afforded corroboration for the evidence of the principal accomplice witness. It is now established that this record should not have been admitted in evidence and that such admission constituted a material irregularity within the meaning of section 83(1)(c) of the Criminal Procedure Ordinance (Cap 221).

3. Ho Fat Wong was stabbed to death on 1st June 1984 while playing mah-jong in a room on the 14th floor of a block in Tse Wan Shan Estate. Immunities were granted and accomplice evidence called with a view to establishing that this killing had been organised by Law; outraged because the deceased had won the affection of his former girl-friend. Admissions were secured from him in an uncautioned interview conducted in a way that could be stigmatized as oppressive. Evidence of that interview was ruled inadmissible by the trial judge. However, he did admit the record of a cautioned interview (p 4(B)) conducted shortly afterwards and in so doing, as the Privy Council found, had failed to ask himself whether the effect of the unhappy features of the earlier uncautioned interview had by then been dissipated; a question which he could only have answered in the negative. Inadmissible evidence of Triad associations also went before the jury.

4. On the question of retrial which arises before us this morning the Judicial Committee had this to say:

"In giving the judgment of the Judicial Committee of the Privy Council in the case of Au Pui-Kuen v. The Attorney General [1979] H.K.L.R. 16, Lord Diplock stated at page 20 that the discretion, whether or not to exercise the power to order a new trial in any particular case, is confided to the Court of Appear of Hong Kong and not to their Lordships' Board. To exercise it judicially may involve the Court in considering and balancing a number of factors, some of which may weigh in favour of a new trial and some may weigh against it. The interests of justice are not confined to the interests of the prosecutor and the accused in a particular ease. They 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. As observed by Lord Diplock at page 21, the strength or weakness of the evidence is a factor to be taken into account but that it is only one amongst what may be many other factors. Mr Newman Q.C. did not contend that the strength of the evidence against his client, without P. 4(B) and the Triad Evidence, was so tenuous that if a verdict of guilty was returned, it would be set aside as unsafe or unsatisfactory under section 83(I)(c) of the Criminal Procedure Ordinance. In their Lordships' view he was right not to make such a submission."

5. Among other matters which we have taken into account are the effect on the recollection of witnesses of the protracted lapse of time which necessarily will have elapsed between the killing and any new trial which could now take place. We have also been concerned that a person who has undergone the ordeal of a trial for murder once should not be required to undergo it a second time unless the interests of justice require it.

6. In Au Pui Kuen v The Attorney Ceneral^(l) at p 22 Lord Diplock referred to some words of Could Acting CJ in Ng Kuk Kin v R⁽²⁾ at p 60 where he reflected that there may be cases where it is :

"     in the interest of the public, the complainant and the appellant himself that the question of guilt or otherwise be determined finally by the verdict of a jury and not left as something which must remain undecided by reason of a defect in legal machinery".

In the light of the considerations already canvassed we are of the opinion that this is such a case. Accordingly we think it appropriate to exercise our unchallenged discretion to order that Law be retried for the murder of Ho Fat Wong and that a fresh indictment be preferred accordingly.

(1) [1979] HKLR 16

(2) [1955] HKLR 49