December Update

The Court of Appeal has recently re-affirmed two important principles in criminal trials

1. Unrepresented Defendants (HKSAR-v- Chan Hoi Wing CACC25/2014)

The first concerned an unrepresented Defendant at trial for trafficking in dangerous drugs in the High Court. She had given evidence at her trial but had called no other evidence. The prosecutor had been permitted to give a closing speech to the jury in which he had said that the Defendant had told “a pack of lies made up as she went along”. The Court of Appeal re-affirmed the judgment of Cheung JA in HKSAR –v- Tso Kin Shing in which he said:

“The prosecution’s right to make a closing speech differs depending on whether a defendant is legally represented. The prosecution has the right to make a closing speech when a legally represented defendant has himself given evidence but has not called any other witness. However, where a defendant is not legally represented and calls no witnesses, then even though he gives evidence for himself, the prosecution is not entitled to make a closing speech”

Interestingly and most fairly, the appeal point was made known to the Court by a letter to the court from the Department of Justice.

Please navigate to this link to read the full judgement : HKSAR v. CHAN HOI WING CACC25/2014

2. Entering the arena (HKSAR –v- Ye Xinyuan )

The second appeal handed down on 18th December 2014 concerned a trial judge who had gone beyond the permitted scope of questioning a Defendant who was giving evidence in his own trial charged with drug-trafficking. The Court of Appeal confirmed that trial judges are permitted to clarify matters with witnesses but should not interrogate them. “The judge’s conduct was such that it would have caused the informed bystander listening to the case to say that the defendant had not had a fair trial,” Mr Justice Derek Pang wrote in the judgment. The appeal was allowed and a re-trial ordered.

Please navigate to this link to read the full Chinese judgement : HKSAR v. YE XIN YUAN CACC 312/2013

cacc25-2014