The Court of Appeal addressed the considering factors in ordering a retrial

The Court of Appeal granted the appeal to set aside the conviction of trafficking in dangerous drugs and held for a retrial with 4 considering factors

8 October 2020 | by LexisNexis Hong Kong

Introduction

In HKSAR v Wong Yu Wing(黃如榮)[2019] HKCU 4765, the Court of Appeal set aside the conviction of trafficking in dangerous drugs and ordered the defendant to be retried.

Facts

The defendant was charged with one count of trafficking in dangerous drugs and pleaded not guilty to this charge but pleaded guilty to possession of dangerous drugs. The defendant was convicted of the drug trafficking charge and was sentenced to more than 6 years of imprisonment.

The defendant applied for leave to appeal and sought leave to appeal against his conviction. His appeal application was later granted. The first ground of appeal was that the trial judge had only referred to the prosecution’s case and directed the jury on drawing inferences referring to the circumstantial evidence that the prosecution had relied on and failed to do so for what was put forwarded by the defendant in his case. This was an unbalanced summing-up. The second ground of appeal was the trial judge erred by not directing the jury that without the alleged admissions, the circumstantial evidence was insufficient to support an inference of drug trafficking.

The prosecution conceded that the first ground of appeal was meritorious and did not object to the appeal against conviction on this ground but not the second ground. The prosecution sought for a retrial.

The defendant opposed to a retrial based on the following arguments:

1. without his disputed admissions, the prosecution did not have a case against him as there were insufficient evidence for drawing the only inference that the defendant was trafficking in dangerous drugs;
2. the defendant would suffer irreparable prejudice from a retrial as the police officers could rehearse their testimony based on what they had learned in the earlier trial;
3. the defendant had been in custody for a term greater than any sentence that would have been imposed on him had he been convicted for a possession offence, which he was allowed a remission for his good conduct;
4. he had already involved in an extensive trial that lasted 25 days; and
5. there would be a time lapse before any retrial.

Judgment

The Court of Appeal granted the appeal to set aside the conviction of trafficking in dangerous drugs and held for a retrial.

Firstly, as the prosecution conceded to the first ground of appeal, it was not necessary for the court to address the second ground of appeal.

Secondly, the prosecution had a strong case against the defendant. The defendant’s admissions of what had become known as “social trafficking” were drug trafficking at law. The admissions were held to be admissible after a voir dire and were supported by the circumstantial evidence. Further, the defendant had already served about half of his original sentence, allowing a remission for good behaviour. These aspects altogether regarding an offence as serious as drug trafficking would, in the absence of strong countervailing factors, certainly led to a decision for a retrial in the interests of justice.

Thirdly, the countervailing factors relied upon by the defendant were weak. It was not for the court to pre-empt the jury by assessing the weight they would give to those admissions should they be ruled admissible. In addition, the “prejudice” assertion made by the defendant would be suffered by each defendant facing a retrial and was not a reason for not ordering a retrial.

Finally, there was nothing to suggest that the lengthy trial was at any fault of the prosecution.

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