HKSAR v. CHAN YIU SHING AND OTHERS

HKSAR v. CHAN YIU SHING AND OTHERS

The court held that the acquittal on the previous Count 5 (attempt to make TATP) does not bar the prosecution from proceeding with the current possession charge or from adducing evidence that the specified items were capable of making explosives (including TATP); however the prosecution may not advance the case to the jury that the defendant attempted to make TATP on 14 June 2015 because he has been acquitted of that offence.

Citation
[2018] HKCFI 317
Parties
Prosecution: HKSAR; 1st Defendant: CHAN Yiu-shing; 2nd Defendant: CHENG Wai-shing; 3rd Defendant: PENNELLI Rizzy; 4th Defendant: WU Kai-fu; 5th Defendant: MAN Ting-lock
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
8 September 2017
Case Number
HCCC41/2016
Procedural Posture
Criminal / Pre Trial Ruling
Outcome
Acquittal entered on previous Count 5 (attempt to make TATP); prosecution permitted to proceed with possession charge (current Count 5) and to adduce evidence that items were capable of making explosives, but prohibited from alleging the acquitted attempt offence.
Legal Topics
Double Jeopardy, Autrefois Acquit, Acquittal Effects, Admissibility of Evidence, Possession of Explosives, Attempted Explosives
Source Language
EN
Criminal Law Evidence Law Administration of Justice Double Jeopardy Autrefois Acquit Acquittal Effects Admissibility of Evidence Possession of Explosives +1 more

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Parties

HKSAR

Prosecution

CHAN Yiu-shing

1st Defendant

CHENG Wai-shing

2nd Defendant

PENNELLI Rizzy

3rd Defendant

WU Kai-fu

4th Defendant

MAN Ting-lock

5th Defendant

Procedural Posture

Criminal / Pre Trial Ruling

Legal Issues

  1. 1 Whether the acquittal on a previous count of attempting to make explosives (TATP) bars the prosecution from proceeding with or adducing evidence in a subsequent possession charge based on the same facts
  2. 2 Whether the prosecution may allege or put to the jury that the accused attempted to make TATP despite the prior acquittal
  3. 3 Scope of the rule against double jeopardy and abuse of process in the context of re-organising prosecution charges

Ratio Decidendi

The court held that the acquittal on the previous Count 5 (attempt to make TATP) does not bar the prosecution from proceeding with the current possession charge or from adducing evidence that the specified items were capable of making explosives (including TATP); however the prosecution may not advance the case to the jury that the defendant attempted to make TATP on 14 June 2015 because he has been acquitted of that offence.

Court Disposition

Acquittal entered on previous Count 5 (attempt to make TATP); prosecution permitted to proceed with possession charge (current Count 5) and to adduce evidence that items were capable of making explosives, but prohibited from alleging the acquitted attempt offence.

Orders

  • Acquittal recorded on previous Count 5 pursuant to section 51A Criminal Procedure Ordinance
  • Re-Re-Amended Indictment to replace Re-Amended Indictment with previous Count 5 removed