Hong Kong Case Law: Decisions & Judgments

Topic

Retrial discretion

Legal area

Court

12 Oct 2023

HKSAR v. LUK FU LEUNG

Citation

[2023] HKCFI 2965
Court

Court of First Instance
Case number

HCMA357/2022

The refusal to allow Defence counsel to ask questions in his preferred language with interpretation was a material irregularity that made the trial unfair given the centrality of witness credibility; consequently the appeal against conviction is allowed and the conviction and sentence are set aside, but a retrial is declined in the exercise of judicial discretion because the appellant has completed the driving improvement course.
21 Jul 2021

HKSAR v. LIANG YAOQIANG (梁耀強)

Citation

[2021] HKCFA 26
Court

Court of Final Appeal
Case number

FACC5/2021

The Court re‑exercised the s83E discretion, concluded the majority of the Court of Appeal had taken into account irrelevant considerations (attributing tactical misconduct to defence counsel unsupported by evidence), found the cumulative factors (multiple prior trials, long custody, risk of prejudice from lapse of time and the arguable strength of provocation/diminished responsibility defences) meant the interests of justice did not require a further retrial, quashed the order for retrial, entered a conviction for manslaughter on the basis of provocation and imposed a sentence permitting imme…
14 May 2020

HKSAR v. ZHOU LIMEI（周禮梅）

Citation

[2020] HKCFA 15
Court

Court of Final Appeal
Case number

FACC7/2019

The Court of Final Appeal held that the Court of Appeal erred by failing to take adequate account of the appellant's psychiatric condition and the cumulative prejudice from prolonged custody (about seven years) facing a second retrial; given the unusual nature of ordering a second retrial and the lack of cogent and compelling reasons, the retrial order was unjustified and quashed, with the appellant to be released.
26 Jun 2019

HKSAR v. TSANG YAM-KUEN, DONALD (曾蔭權)

Citation

[2019] HKCFA 24
Court

Court of Final Appeal
Case number

FACC29/2018

The trial judge's directions on wilfulness and seriousness were inadequate because they failed to explain to the jury how to assess deliberate non-disclosure and the duty to disclose where bribery was not established; this deficiency was material given the jury acquitted or hung on the bribery count, and accordingly the conviction for misconduct in public office was quashed; no retrial was ordered on grounds that the appellant had already served the sentence and the interests of justice did not require it.
21 May 2019

香港特別行政區訴陳志德

Citation

[2019] HKCA 524
Court

Court of Appeal
Case number

CACC96/2017

The trial judge materially misdirected the jury on the legal significance of flight and failed to give adequate and non-confusing directions about taking drugs out to exchange and about the effect of a 4-3 split; coupled with insufficiency of evidence to infer trafficking from possession of 8.67g in the street, the trafficking conviction was unsafe and was quashed and substituted with a conviction for possession, with a fine imposed; no retrial was ordered because evidence supporting trafficking was weak and the applicant had already served an equivalent lengthy period in custody.
9 Jan 2018

HKSAR v. WEERASIRI NARAYANAGE WIJERATHNA

Citation

[2018] HKCFI 148
Court

Court of First Instance
Case number

HCMA418/2017

Conviction and sentence were set aside because of an error in the trial (insufficient findings on knowledge and issues with the statement of findings), but because the prosecution was not at fault, the offence was serious, delay was not protracted and the defence was unlikely to be prejudiced by further time lapse, the balance favored ordering a retrial.
22 Sept 2017

HKSAR v. TAM HO NAM

Citation

HKSAR v. TAM HO NAM
Court

Court of Final Appeal
Case number

FACC3/2017

Because the trial judge omitted the special direction required to guard against the impermissible reasoning that the scale and manner of retaliation necessarily negated the objective limb of provocation, in the factual context of a frenzied chopper attack and prosecution closing submissions inviting that reasoning, there was a departure from an accepted norm causing substantial and grave injustice; the conviction was therefore quashed and a re-trial ordered.
1 Jun 2017

HKSAR v. CHUNG CHEUK PANG

Citation

HKSAR v. CHUNG CHEUK PANG
Court

Court of Appeal
Case number

CACC104/2016

The trial judge's explicit reliance on the status of police officers to deem it inherently improbable they would fabricate evidence was legally impermissible and fatally undermined verdicts that depended entirely on admissions obtained by those officers; the proviso to s.83(1) CPO could not save the convictions and, for practical reasons, no retrial was ordered.
19 Oct 2016

RE MR TIM OWEN QC

Citation

RE MR TIM OWEN QC
Court

Court of First Instance
Case number

HCMP2531/2016

Refusal of ad hoc admission because the appeal point did not raise issues of unusual complexity and suitable Hong Kong counsel (Mr Andrew Bruce SC) was available and competent; applicant failed to show Mr Tim Owen QC would add a significant dimension or that the CFA factor justified admission.
26 May 2016

HKSAR v. WU WING KIT AND ANOTHER

Citation

HKSAR v. WU WING KIT AND ANOTHER
Court

Court of Appeal
Case number

CACC299/2014

The convictions were unsafe because the trial judge applied an incorrect legal test for the mens rea element “reasonable grounds to believe” (adopting an approach held to be erroneous by the Court of Final Appeal in Pang Hung Fai), such that the required mental element was not properly assessed; accordingly convictions were quashed and retrials ordered where the court concluded a properly directed jury might convict on the available evidence.