HKSAR v. TING JAMES HENRY

CACC 318/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 318 OF 2005

(ON APPEAL FROM HCCC NO. 156 OF 2004)

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REASONS  FOR  DECISION

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Hon Tang VP (giving the reasons for decision of the Court):

Application for Certification

Introduction

1.  The appeal was heard over two days.  The applicant was represented by Mr Jones QC, of the English Bar.  We reserved judgment.  At the end of Mr Jones’ reply he said:

“… and if the court wanted me to address the retrial point, I would develop that further, but I’m in the courts hands.”  (Transcript p. 162G)

2.  Then, we were told by Mr McWalters SC, that the prosecution would be applying for retrial, but that he would prefer to address the court on retrial when he knew our decision on the issue that there was no evidence of gain or loss.

3.  That was followed by this exchange between the court and Mr Jones:

“Woo VP:     We are minded of reserving our judgment and prosecution’s stance is they have to await our decision and the reasons for our decision; I don’t think it is fruitful for us to hear you now.

Mr Jones:      Well, my Lord, it is obviously a matter of substance and, of course, I know your Lordships know better than I do, that the court has to take into account a wide, full variety of factors, both for the prosecution and the defence.

Woo VP:      Yes.

Mr Jones:      And if the court takes the view that it is a matter which should be considered in the light of the judgment and the factors and the considered argument, my Lord, I couldn’t object to that.

Woo VP:      Mr Jones, since we still have some time, do you still want to make any submission on a retrial?

Mr Jones:      My Lord, yes, I – if your Lordships would find it helpful …

Woo VP:      Despite the absence of the prosecution’s address on the point.

Mr Jones:      My Lord, I can certainly do so if it would help, yes.

Woo VP:      Yes, go ahead.”

(Transcript pp. 162R-163I)

4.  Mr Jones then proceeded to address us on retrial.  The main thrust of his submission was that the prosecution should not have another chance to remedy the shortcomings in this case.  He also reminded us that the applicant was a person of good character, the passage of time, this was not a case where there was apparently an aggrieved victim and the costs of a retrial.

5.  At no time did Mr Jones suggest that he wished to have another opportunity to address us after we have delivered our judgment.  Indeed, the passages quoted above suggested that Mr Jones was quite content that we should deal with the question of retrial in our judgment without a further hearing.

Certification

6.  The applicant applied for a section 32 certificate that four points of great and general importance are involved in our decision.

7.  They are:

“1.     Whether the Court of Appeal erred in principle in the exercise of its discretion in ordering a re-trial within the body of a judgment setting aside the conviction which judgment was handed down, without affording the Applicant an opportunity to consider the grounds upon which the conviction was set aside and to make fully informed submissions thereon.

2.      Whether, in the following circumstances, the Court of Appeal had erred in principle: the Court of Appeal having reached the conclusion that the basis upon which the prosecution had chosen to conduct the case against the Applicant had rendered the conviction unsafe and unsatisfactory, they should not have ordered a new trial in order that the prosecution should have another chance to remedy the shortcomings in their case.

3.      Whether, inasmuch as it is the function of the prosecution and not part of the Court’s function to decide how to frame its case, what facts to call and what facts to elicit from the witnesses, the Court of Appeal erred in formulating its own view of the way in which the prosecution ought to have conducted its case and directing a re-trial which would enable the prosecution to profit from the considered opinions of the Court.

4.      Whether, the Court of Appeal having found that the prosecution chose to present its case in such a way and rely upon evidence that was insufficient to justify a conviction by a properly directed jury, it was in conflict with the basic principle that in every criminal trial it is for the prosecution to prove its case against a defendant that a new trial should be ordered to give the prosecution a second chance to make good the deficiencies in its case.”

8.  The basis of our power to order a retrial is section 83E of the Criminal Procedure Ordinance, Cap 221.  We can order a retrial if the interests of justice so require.

9.  The judgment of Bokhary PJ in Lau Tat-keung v HKSAR, a decision of the Appeal Committee, FAMC No. 30 of 1999, unreported, dated 31 Jan 2000, covers this application.  Bokhary PJ said at page 3:

“As to the ‘point of law of great and general importance’ limb, he has put forward five questions. In so far as those questions are questions of law at all, none of them raise any point of law which has not already been well settled. All of those questions concern how established principles of criminal law are to be applied to the facts of a particular case. That goes to the roles of trial courts and intermediate appellate courts. It does not go to the role of the Court of Final Appeal under the ‘point of law of great and general importance’ limb.”

10.  We turn to the questions.

1st question

11.  This does not involve a point of general or great importance.  As has been explained above, we were left with the impression that the applicant had not wanted a further opportunity to address the court.  It is not uncommon, to save costs and expense, for submissions to be made in advance of the decision on the appeal.  Mr Sarony SC (who addressed us on behalf of the applicant) accepted that in an one issue appeal, that can be done without any difficulty or injustice.  Indeed, he was prepared to accept that would be so in appeals where the grounds upon which the conviction may be quashed can be anticipated.  But he submitted that this was not such a case.  We do not agree.  Mr Jones’ submission covered practically all the points which the applicant now wishes to urge upon us against a retrial.  But whether that is so or not, no point of general or great importance is involved.  No doubt, the applicant is entitled to be heard and it is a question of fact whether he has been denied the opportunity.  But even if he had been denied the opportunity, the remedy lies in the Court of Final Appeal, if it takes the view that a substantial and great injustice has been done.

2^nd question

12.  We ordered a retrial because the interests of justice so required.

13.  As Mr McWalters has aptly put it in his written submission, a consequence of an order of a retrial but not the reason for it may be that the prosecution do not repeat the mistake that was made in the first trial.  But that is simply the result of the retrial process and does not render a retrial unfair.  In Reid v The Queen [1980] AC 343, per Lord Diplock said at page 348:

“It would conflict with the basic principle that in every criminal trial it is for the prosecution to prove its case against the defendant, if a new trial were ordered in cases where at the original trial the evidence which the prosecution had chosen to adduce was insufficient to justify a conviction by any reasonable jury which had been properly directed. In such a case whether or not the jury’s verdict of guilty was induced by some misdirection of the judge at the trial is immaterial; the governing reason why the verdict must be set aside is because the prosecution having chosen to bring the defendant to trial had failed to adduce sufficient evidence to justify convicting him of the offence with which he has been charged. To order a new trial would be to give the prosecution a second chance to make good the evidential deficiencies in its case — and, if a second chance, why not a third? To do so would, in their Lordships’ view, amount to an error of principle in the exercise of the power under section 14 (2) of the Judicature (Appellate Jurisdiction) Act.”

14.  We appreciate that it would be a misuse of our discretion to order a retrial, so as to give the prosecution a second chance to get its tackle together, but that is not the reason why we ordered a retrial.  So here, again, the complaint of the applicant is really not that we have applied the wrong legal principle but that we have failed to apply the settled legal principles to the facts of this case.  Whether that is so is not for us to decide.  But it is not a reason for certification.

3rd Question

15.  Again, as Mr McWalters put it, invariably every successful appeal involves, not just a finding of what the legal error was that prompted the court to allow the appeal, but a discussion of the evidence and comments on what might have been done to avoid the mistake that had occurred.  Moreover, before the court may exercise its discretion to order a retrial, it must be satisfied that a trial can take place that could result in the conviction of the appellant.

16.  No question of great or general importance is involved here.

4^th Question

17.  This is essentially the same as the 2^nd question.  A new trial should not be ordered to give the prosecution a second chance to make good the deficiencies in its case.  The applicant relied on the decision of the High Court of Australia in King v R [1986] 67 ALR 379.  There at the first trial, the appellant had been charged together with one Matthews with the murder of the applicant’s wife.  The trial was conducted on the basis that the applicant had arranged for her to be killed by Matthews.  But in the summing up, the trial judge accepted the prosecution’s submission that the jury could convict the applicant whether the murder was performed by Matthews or another person.  The jury acquitted Matthews and found the applicant guilty, but his conviction was quashed by the New South Wales Court of Criminal Appeal.  He sought special leave to appeal to the High Court of Australia from the order that he be retried rather than be acquitted.  There was no disagreement over the applicable principle, namely, that a retrial should not be ordered to enable the prosecution to supplement a case which has proved to be defective or to be given an opportunity to make a new case which was not made at the first trial.  The court was divided, however, on whether at the new trial, the prosecution would be presenting a new case.  The majority view was that it would not.  Dawson J for the majority said:

“It is well established that the discretion to order a new trial should not be exercised when the evidence in the court below was not sufficiently cogent to justify a conviction or to allow the Crown to supplement a case which has proved to be defective. In particular, the Crown should not be given an opportunity to make a new case which was not made at the first trial: R v Wilkes (1948) 77 CLR 511 at 518. If the verdict against King in this case was inconsistent with the verdict in favour of Matthews, then the Crown could properly succeed against King upon a retrial only by putting a new case. It certainly ought not be allowed to proceed in any retrial upon a basis inconsistent with the jury’s verdict of acquittal of Matthews. However, it does not appear to me that the two verdicts given by the jury were inconsistent.”

18.  Mr McWalters submitted that the prosecution would rely on the same particulars as are stated in the charges and the same evidence to support those particulars.  The conduct of the applicant upon which the charges are based remain the same.  In any event, the 4^th question is not a question of great or general public importance.

19.  Mr Sarony also submitted that “the matters of apparent bias addressed under ground 1 of the original grounds of appeal fell for consideration insofar as there was a perception of bias which coloured those involved in the prosecution”.  This was not raised by Mr Jones when he addressed us on retrial.  Nor does it arise under any of the four questions framed in the Notice of Motion.  To be fair to Mr Sarony, he did not put particular emphasis on this point.  Insofar as the bias is supposed to involve the judge, it is difficult to see why that should be a reason against a retrial.  As for the allegation that since one lawyer from the Department of Justice acted as an advocate as well as a witness, even if it could be a valid ground of appeal, we cannot see why that could be a reason against a retrial. 

20.  For the above reasons, we refused the application for certification.

Application on costs

21.  The applicant applied for the costs of the appeal and of the trial.

22.  The respondent has conceded the costs of the appeal.  We agreed and ordered the costs of the appeal in favour of the applicant.

23.  As for the applicant’s costs at trial, the normal rule is that the costs follow the acquittal unless there are positive reasons not to do so:

“… Such reasons include:

(a)     an accused’s own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case against him is stronger than it is; or

(b)     there was ample evidence to convict but the accused was acquitted on a technicality which had no merit.”  R v Kwok Moon-yan and Anor [1989] 2 HKLR 396.

24.  In R v Man Wai-keung (No.2) [1992] 2 HKCLR 207, Silke VP in delivering the judgment of the court, said at page 214:

“… Whether or not a successful appellant who has been ordered to be retried will get his costs, or any portion of them, of the process which has gone before that decision was made will, of course, lie for the unfettered discretion of this court applying the principles which Kwok Moon-yan attempted to set out. The fact that a retrial has been ordered and the reasons for the making of such an order will be additional factors to be considered in the exercise of that discretion.”

25.  Further, as Court of Final Appeal has explained in Tong Cun-lin v HKSAR [1999] 2 HKCFAR 531, the discretion must be exercised by looking at the applicant’s conduct generally, so long as the conduct being considered was relevant to the charges the defendant faces.

26.  In this case, the prosecution relies on the following conduct of the respondent:

“The conduct upon which the Respondent relies is:

(i)      the Respondent signing the documents which are the subject of the charges;

(ii)     the transaction being fabricated and supported by false documents;

(iii)     the Respondent’s post-offence conduct in leaving Hong Kong and refusing to assist the liquidators and the Police.”

27.  So far as (i) and (ii) are concerned, we believe that the evidence showed quite clearly, and accepted to be so by the jury, that the purchase of the MicroMain shares was a fiction, and that the documents were fabricated to create an appearance of genuineness.

28.  As for the applicant’s post-offence conduct, the respondent relies on the following:

“(a)    on 29.1.2001, Nelson Wheeler, the provisional liquidator reported the case to CCB;

(b)     on 23.5.2001 Nelson Wheeler was appointed the liquidator of what was now Akai;

(c)     on 15.10.2001 the Applicant left Hong Kong and did not return until 30.4.2003; and

(d)     in February 2003 the Applicant was requested via his lawyer to return to Hong Kong for interview by CCB. The Applicant declined and requested CCB to travel to Shanghai to see him.”

29.  In any event, we would ignore (d) since it might be said the applicant was merely exercising his right of silence.

30.  We regard the matters set out in para 26(i) and (ii) as sound reasons for refusing the applicant his costs of trial.  The applicant’s conduct had brought grave suspicion on himself.  It is unnecessary to consider the applicant’s post-offence conduct.

31.  We therefore refused a costs order in favour of the applicant in respect of the trial.

32.  We would also record that our order for costs of the appeal in favour of the applicant does not include the costs for the hearing of this application for costs and that we have ordered that the respondent do have its costs of the application for certification.