HKSAR v. LAI KAN YAU

CACC 177/2021

[2025] HKCA 788

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 177 OF 2021

(ON APPEAL FROM HCCC NO 52 OF 2020)

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J U D G M E N T

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Hon Zervos JA (giving the Judgment of the Court):

1.  On 31 July 2025, we allowed the appellant’s appeal against his conviction for murder. The parties were directed to file written submissions regarding the issue for retrial.

2.  The respondent seeks a retrial of the appellant for the murder of his father. The appellant opposes the application and urges this Court to enter a verdict of guilty for manslaughter based on an unlawful and dangerous act (although, at trial, the defence invited the jury to find the appellant guilty of manslaughter by provocation[1]).

3.  The respondent points out that the appeal succeeded on a technical error, where prosecuting counsel wrongly accused the appellant of lying about receiving a return call from his father, which may have influenced the jury’s assessment of the appellant’s credibility. The respondent emphasises that the appeal was not allowed on the basis of insufficient evidence, as the case against the appellant was strong. As noted in the judgment, we concluded that the appellant was the author of his own misfortune in the way the issue of the missing call was presented and left before the jury.

4.  When determining whether to order a retrial, the fundamental consideration is what justice requires under the circumstances of the case.

5.  The appellant raises three arguments challenging the feasibility of receiving a fair retrial.

6.  The first argument is that the prosecution has benefited from knowing the defence case. The defence case was fully disclosed in the appellant’s out-of-court statements, where he admitted killing his father because he had been provoked by him. There was nothing substantial in the appellant’s written instructions that did not already emerge as part of the defence case at trial. As the respondent points out, the appellant will also have the corresponding advantage of knowing what specific facts or issues are likely to be raised against him in the retrial.

7.  The second argument is that the appellant elected to give evidence to support his appeal on the ground of flagrant incompetence of counsel, and consequently this may act unfairly against him. This Court was “not impressed” with the appellant’s evidence, which was limited to his knowledge of his father’s other telephone number and discussing with his legal representatives about the missing telephone call. The missing telephone call is no longer an issue, as the father did make a call to the appellant on the afternoon of 3 December 2018. The appellant argues that the public availability of this Court’s judgment and its criticism of his testimony could prejudice the impartiality of the jury at a retrial. As submitted by the respondent, this concern could be addressed through a non-publication order or restrictions on referencing the judgment. However, the publication of the judgment is primarily limited to legal reports or texts, and any media coverage would have occurred long before the retrial. Furthermore, a jury would not typically be informed that it is a retrial and would be specifically instructed not to conduct their own research, but to consider only the evidence presented to them. We consider this is a matter that can be more appropriately addressed by the trial judge, taking into account the circumstances at the time. This may include the court employing any remedial measures or providing appropriate directions, particularly during jury empanelment.

8.  The third argument is that a significant time gap exists between the date of the offence and any subsequent retrial. It is argued that the retrial is likely to occur approximately eight years after the offence, which will affect the quality of evidence for both the prosecution and the defence. In our view, the time gap would not prejudice the appellant for the following compelling reasons. First, the appellant admitted killing his father, and the main issue in a retrial will be whether he was provoked. Secondly, the appellant gave a detailed account of the relevant events in his out-of-court statements, which were not challenged. Thirdly, the issues in this case are limited to whether the appellant killed his father under provocation. The killing and the alleged provocative conduct were not witnessed by any prosecution witnesses, and the case will primarily focus on the appellant’s credibility and the reliability of his account of the relevant events. Any issues arising from the lapse of time will be addressed by the judge through appropriate directions.

9.  It is not uncommon for appellate courts to order a retrial after a significant period has elapsed since the date of the offence. However, this will depend upon the specific facts and circumstances of the case. In HKSAR v Liang Yaoqiang[2], the Court of Final Appeal ordered a second retrial for the charge of murder approximately seven years after the offence, holding[3]: “This is not a case in which it would be appropriate to substitute a conviction of manslaughter … where the issue of credibility of the facts on which the defence was based ought to have been left to the jury to determine, the only appropriate order on the quashing of the murder conviction is one of retrial”.

10.  There is no valid reason to suggest that the appellant cannot receive a fair trial, given the court’s available resources and remedial measures designed to mitigate any potential prejudice: HKSAR v Lee Ming Tee & Another[4]. There is a strong public interest in ensuring that serious crimes are properly resolved and punished through the criminal justice system. In the circumstances of this case the interests of justice dictate that the appellant be retried.

11.  In light of the foregoing, we order that the appellant be retried for the charge of murder on a fresh indictment. We direct that his retrial be expedited.