Case Commentaries

AuthorJeremy Gans
Date01 October 2014
Publication Date01 October 2014
DOI10.1350/ijep.2014.18.4.466
SubjectCase Commentaries
CASE COMMENTARIES
CASE COMMENTARIES
CASE COMMENTARIES
Pre-trial publicity—Hong Kong
This was as cogent a case of murder as might be imagined. In the
welter of arguments and details that have been churned in the course
of this case, both at first instance and upon appeal, the wood is in
danger of being obscured by the trees. There are a number of central
and clear features, about which there can be no reasonable argument
...
The above remark was made by the Court of Appeal of Hong Kong in HKSAR vKissel
[2008] HKCA 387 when it dismissed the defendant’s appeal from her conviction in
a 2005 trial for murdering her husband. However, the proceedings were not
finalised for a further five-and-a-half years, following a retrial ordered by the Court
of Final Appeal in 2010, another guilty verdict in 2011, another dismissal of her
appeal by the Court of Appeal in 2013 and, this year, the Court of Final Appeal’s
refusal of leave to appeal in HKSAR vKissel [2014] HKCFA 39. Amongst the
complaints raised by Nancy Kissel’s counsel in the Court of Final Appeal was that
her retrial should have been stayed due to pre-trial publicity. On this point, the
court briefly endorsed the Court of Appeal’s lengthy reasons for endorsing the
trial judge’s decision to refuse a stay.
The focus of Kissel’s stay application was the very evidence that led the Court of
Final Appeal to order her retrial in 2010: two accounts of the victim’s fears that his
wife was trying to poison him, as well as a speculative claim that she plotted her
husband’s death with her lover. In Kissel vHKSAR [2010] HKCFA 5, the court held
that the hearsay rule barred any use of this evidence to argue that the accused had
a plan to kill the victim and that any attempt to use it merely to rebut the
accused’s account of the marriage raised fraught issues of prejudice. By then, this
evidence had been repeatedly aired in the media in the five-year period since her
first conviction, including in newspaper reports, books and documentaries.
Copious references remained online during her second trial, including in links
from her Wikipedia entry. Kissel argued that the dangers of this evidence were
doi:10.1350/ijep.2014.18.4.466
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2014) 18 E&P 353–358 353

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