Au Pui-kuen v Attorney General of Hong Kong
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1979 |
| Date | 1979 |
| Year | 1979 |
| Court | Privy Council |
Hong Kong - Crime - Court of Appeal - New trial - Conviction quashed - Discretion to order new trial in interests of justice - Whether probability of conviction condition precedent to order - Criminal Procedure Ordinance (Laws of Hong Kong, 1972 rev., c. 221)
Section 83E (1) of the Criminal Procedure Ordinance provides:
“Where the Court of Appeal allows an appeal against conviction and it appears to the Court of Appeal that the interests of justice so require, it may order the appellant to be retried.”
The defendant was convicted of murder. He appealed and the Court of Appeal quashed his conviction on the ground that the trial judge had misdirected the jury as to the law of self-defence. The court ordered a new trial under section 83E (1) of the Criminal Procedure Ordinance.
On the defendant's appeal to the Judicial Committee on the grounds that the Court of Appeal had to be satisfied that the interests of justice “required” a new trial and that in exercising its discretion to order a new trial the court had to have regard to the strength of the prosecution case and be satisfied that a reasonable jury properly directed would probably convict:—
Held, dismissing the appeal, that the judicial character of the Court of Appeal's unqualified discretionary power to order a new trial carried an implication that a new trial should be in the interests of justice and the words of the Ordinance if “the interests of justice so require” added nothing to the court's duty to act judicially; that there was no principle of law that the probability of a conviction was a condition precedent to or a factor of paramount importance in considering whether to make the order for a new trial; and that since there was nothing from which to infer that the Court of Appeal had taken into account matters it should not have done or failed to consider others to which it should have had regard, the Judicial Committee would not interfere with the order made.
The following cases are referred to in the judgment of their Lordships:
Aplin v. The Queen [
Burks v. United States (
Greene v. Massey (
Ng Yuk Kin v. The Crown (
The following additional cases were cited in argument:
Cheng Hing U v. Rex (
Chiang Shu Chuang v. Cheng Yeung Shing (
Holder v. The Queen [
Lam Tuk U v. The Queen (unreported), July 22, 1968, Supreme Court of Hong Kong (Appellate Jurisdiction).
Lam Woon-nang v. The Queen [
Nirmal v. The Queen [
O. (Infants), In re [
Ross v. The Queen [
Salim Muhsin v. Salim bin Mohamed (
Short v. Attorney-General of Sierra Leone [
Sumar (Ahmedi Ali Dharamsi) v. Republic [
APPEAL (No. 39 of 1977) by Au Pui-kuen, the defendant, from an order made orally on February 17, 1977, by the Court of Appeal of Hong Kong (Briggs C.J., Huggins and Pickering JJ.A.) affirming its previous order of January 21, 1977, by which it quashed the defendant's conviction on September 30, 1976, before Li J. and a jury of the murder of Lai Hon-shing on January 9, 1976, and ordered a re-trial.
The facts are stated in the judgment of their Lordships.
M. H. Jackson-Lipkin Q.C. (Hong Kong) and Lucille Fung (both of the English and Hong Kong Bars) and David Ross for the defendant.
W. A. Macpherson Q.C. and Thomas Gall (Crown counsel in Hong Kong) for the Crown.
December 4. The judgment of their Lordships was delivered by LORD DIPLOCK.
This is an appeal from an order of the Court of Appeal of Hong Kong dated February 17, 1977, whereby it allowed the appeal of the defendant, Au Pui-kuen, against his conviction of murder and (by a majority) exercised its discretion under section 83E (1) of the Criminal Procedure Ordinance to order that the defendant be re-tried.
The respondent, the Attorney-General of Hong Kong, does not contest that part of the Court of Appeal's order which quashed the defendant's conviction. He is concerned only to uphold the order for a new trial. As their Lordships have reached the conclusion that they would not be justified in advising Her Majesty that the order of the Court of Appeal ought to be interfered with, their Lordships will refrain from saying any more about the evidence adduced in the previous trial of the defendant than is necessary for a proper understanding of the circumstances in which his conviction came to be quashed.
The defendant was a detective constable in the Royal Hong Kong Police Force. On January 9, 1976, at a time when he was not on duty he got into a dispute with three young men in a public street. This developed into a fight between the defendant and the three young men. It took place in the presence of a number of eye-witnesses, and in the course of it the defendant drew his revolver and fired three shots. One shot killed Lai Hon-shing, one of the three young men with whom he had been struggling; another shot injured a bystander.
A coroner's inquiry into the death of Lai Hon-shing was held between February 2 and May 20, 1976, at which the defendant gave evidence...
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