Retrial or Not? The Troubles of Exercising Discretion
| DOI | 10.1177/00220183221098063 |
| Published date | 01 April 2022 |
| Date | 01 April 2022 |
| Subject Matter | Case Notes |
Retrial or Not? The Troubles
of Exercising Discretion
HKSAR v Liang Yaoqiang (梁耀強) (No 2) (2021) 24
HKCFAR 193
Keywords
Retrial, discretion, murder, provocation, diminished responsibility
Legislation:
Criminal Procedure Ordinance (Cap.221) s.83E(1)
This is an unusual case with a tragic background. The appellant brutally killed his cohabitee and was con-
victed of murder three times following three separate jury trials. That exceptionally brought the appellant
the second time before the apex court in Hong Kong, the Hong Kong Court of Final Appeal (“CFA”).
In 2009, the appellant killed his cohabitee by chopping her with a knife 213 times after discovering her
alleged infidelity. He was first convicted of murder following a jury trial in 2010, but the Court of Appeal
(“CA”) allowed his appeal on the basis of misuse of hearsay evidence and ordered a retrial in 2013. In
2014, the appellant was again convicted of murder in a jury trial. The CA, by a majority, upheld his con-
viction and the case went through to the CFA. The issue in the first and second trials was that of provo-
cation. The appellant had admitted to the killing and offered to plead guilty to manslaughter every time,
but the prosecution refused.
In 2017, the CFA quashed the conviction due to a misdirection given to jury at the trial and ordered a
second retrial since “the issue of credibility of the facts on which the defence was based ought to have
been left to the jury to determine”(HKSAR v Liang Yaoqiang (2017) 20 HKCFAR 1 at [127].).
In 2018, the appellant for the third time was convicted of murder. The issue of diminished responsi-
bility was raised for the first time in this third trial. In 2020, his conviction was quashed by the CA for the
reason of “a failure to direct the jury on the relevance of the psychiatric evidence in relation to the defence
of provocation”(HKSAR v Liang Yaoqiang [2021] 1 HKLRD 26 at [145]). However, the majority of the
CA (Macrae VP and Zervos JA with McWalters JA dissenting) ordered a third retrial upon its exercise of
discretion. All of the judges gave their reasons as follows.
The brief reasons given by Macrae VP were that, first, the crime at issue was murder, one of the most
serious crimes; second, the killing was undisputed; third, the fading of memories could be remedied;
fourth, the defence of diminished responsibility was run for the first time; and fifth the misdirection to
the jury was contributed to by the appellant’s counsel (at [3]-[7]).
Zervos JA gave detailed reasons, which were summarized as eleven considerations directing his exer-
cise of discretion (at [257]): (1) a fourth trial would not be oppressive to the appellant; (2) the la pse of
time would not post material prejudice to the appellant; (3) there was a need for finality determined
by a jury; (4) the case for murder was strong; (5) a retrial would be straightforward; (6) the issues
were of the nature suitable to be determined by a jury; (7) the interests of the public required a determin-
ation of the most serious crime; (8) the sentence of murder would be life imprisonment; (9) a fair trial was
Case Note
The Journal of Criminal Law
2022, Vol. 86(2) 138–142
© The Author(s) 2022
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DOI: 10.1177/00220183221098063
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