To try or not to retry?


Court of Final Appeal
Final Appeal No. 7 of 2019 (Criminal)
Coram: Chief Justice Ma, Mr. Justice Ribeiro PJ, Mr. Justice Fok PJ, Mr. Justice Cheung PJ and Mr. Justice Stock NPJ
27 April 2020

Facts and Procedural History

On 15th November 2012, the Appellant arrived in Hong Kong from Kuala Lumpur and her suitcase was inspected at the Hong Kong International Airport. After unzipping the lining of her suitcase, a Customs officer found 1.79 kilogrammes of a mixture containing 0.8 kilogrammes of heroin hydrochloride. The Appellant was charged with Trafficking in a Dangerous Drug.

The Appellant was first tried at the High Court in February 2014. She was convicted after a six-day jury trial (5:2) and sentenced to 21 years’ imprisonment. In February 2015, her appeal against conviction to the Court of Appeal (CA) was dismissed. In February 2017, her appeal to the Court of Final Appeal (CFA) was allowed, her conviction was quashed and a retrial was ordered.

The Appellant was convicted after her 2nd jury trial in July 2017 (6:1 this time) and again received a sentence of 21 years’ imprisonment. Her appeal against conviction to the CA was allowed in November 2018. The Appellant’s conviction was quashed and a 2nd retrial was ordered (for reasons discussed in further detail below). The Appellant then obtained leave from the Appeal Committee of the CFA to appeal against the order by the CA for a 2nd retrial.

The Appellant had been in custody for about seven and a half years up until the hearing of this appeal.

The Relevant Principles in relation to Retrials

According to Section 83E of the Criminal Procedure Ordinance, when the CA allows an appeal, it may order a retrial if “the interests of justice” so require. Relevant to the present case are the following principles distilled from precedents:

1). Whether a retrial should be ordered is a matter of discretion, usually exercised by the CA, relying on their “collective sense of justice and common sense” and the making of “an informed and dispassionate assessment of how the interests of justice in the widest sense are best served”.

2). The discretion whether or not to order a retrial depends entirely on what justice requires, with this being the “critical question”.

3). The interests of justice include a consideration of an accused’s interests and circumstances, and also the interests of the public in seeing those who are guilty of serious crimes brought to justice and do not escape merely because of a technical error. In assessing the public interest, a court must take into account the views of the prosecution which is best qualified and has the duty to present the views of the public, although it must ultimately be for the court to determine what is in the public interest. The strength of the prosecution case is also relevant.

4). The interests of justice require all relevant factors, both for and against a retrial, to be taken into account. Such factors will not only vary from case to case, but their relative importance and weight will also be different in any given case.

5). One factor that must be given significant weight is the fact that the accused has already undergone a trial, in particular where the trial is long and complex. This is all the more so when there is involved a 2nd retrial. In Mok Kin Kau v HKSAR (2008) 11 HKCFAR 1, the ordering of a 2nd retrial was said to be an “unusual course” and in the absence of special or compelling reasons, was a “departure from accepted norms” sufficient to constitute a substantial and grave injustice. Given that the ordering of a 2nd retrial is an unusual course, a court would have to be persuaded by cogent and compelling reasons to make such an order.

6). Another factor to be taken into account is the time that an accused has spent in custody, seen against the likely sentence the accused might receive.

Application of Principles

The Appellant’s mental condition was raised in the CA, when parties addressed the issue of a 2nd retrial. A psychiatric report diagnosed the Appellant to be suffering from adjustment reaction and situation reaction. It also noted that her mental condition worsened when she had setbacks in legal proceedings and that she harboured “fleeting suicidal ideation”.

In ordering a retrial, the CA made no reference to the evidence relating to her mental condition, stating that “The fact that the applicant has to face a third trial and that she has been remanded in custody for over 6 years, all of which might be causing her frustration but is insufficient to persuade this Court not to order the case for retrial.” This was, in the CFA’s view, at best a non-appreciation and understatement of the Appellant’s mental condition, given the lengthy time she had already been in custody and that she was facing a 3rd trial. Leave to appeal to the CFA was hence granted as it was reasonably arguable that a substantial and grave injustice had been done in making the order for a 2nd retrial without adequate consideration of the hardship factor.

The Appellant’s mental condition was a factor that should have been taken into account by the CA, and as it was not, the CFA was free to consider afresh the exercise of the discretion whether or not to order a retrial.

The starting point was that since a 2nd retrial was being sought, cogent and compelling reasons had to be advanced by the prosecution to justify such an order. Furthermore, as at the time of her appeal, the Appellant had been in custody for 7 and a half years. After considering the sentences passed following her previous trials and taking into account remission, the Appellant would have been in custody for eight out of 14 years, assuming she is convicted after her 2nd retrial. The fact that she would have served over half of a long sentence is the context in which to evaluate other relevant factors.

The respondent emphasized two points in support of a 2nd retrial. Firstly, it was in the public interest for the Appellant to have to face trial for a serious offence; secondly, the evidence against the appellant was strong.

In terms of medical evidence regarding the Appellant’s mental condition, the Appeal Committee granted leave to the Appellant to adduce a medical report by her expert, and directed that a joint expert report be prepared on her psychiatric condition, to be considered by the CFA. Whilst the experts’ opinions differed on a number of matters, they agreed to varying degrees that the Appellant suffered from “Major Depressive Disorder, single episode, moderate to severe with psychotic-symptoms”. They were also of the view that she was mentally fit to stand trial despite the above diagnosis.

The experts however, disagreed on whether the Appellant would be disadvantaged in defending herself in another trial. The Respondent submitted that this issue should be left to be decided by the CFI, in an application for a stay of proceedings after a 2nd retrial had been ordered for. The Appellant argued that this issue should be determined by the CFA.

HELD, in allowing the appeal, quashing the order for a 2nd retrial and ordering that the Appellant be released, that:

    • The relevance of the medical evidence lay not so much in the resolution of whether the Appellant would be disadvantaged in defending herself in another trial, but rather in putting into proper perspective and context the lengthy period that she had already been in custody for the present cases.
    • Taking all considerations into account (including the strength of the prosecution case which was open to question) the CFA was of the view that it was clearly in the interests of justice not to order a 2nd retrial.
    • Perhaps individually, each factor may not necessarily have been sufficient but cumulatively it was compelling to call a halt to the proceedings as there were insufficient cogent or compelling reasons that existed to justify ordering for a 2nd retrial.

This article by MCS originally appeared in Hong Kong Lawyer, the Official Journal of the Law Society of Hong Kong: HKSAR v ZHOU Limei