HKSAR v Wong Yu Wing

Court of Appeal
Criminal Appeal No 209 of 2018
Yuen, McWalters and Zervos JJA
29 November, 19 December 2019

Criminal law and procedure — trial — summing-up — summing-up on issue as to drawing of inferences would be unbalanced if it did not deal with defence case, as well as prosecution case, on issue

Criminal law and procedure — retrial — factors for and against ordering retrial

D stood trial in the High Court on a count of trafficking in dangerous drugs. He pleaded not guilty to trafficking in those drugs but tendered a plea of being guilty of possessing them. The jury found D guilty of trafficking as charged. He was sentenced to 82 months and 15 days’ imprisonment. With leave, he appealed against his conviction. The first ground of appeal was essentially that the summing-up was unbalanced in that the Deputy Judge referred only to the prosecution case, but not to the defence case, when directing the jury on inferences. The respondent conceded that the first ground of appeal was meritorious, and indicated that the appeal against conviction on that ground would not be opposed. A retrial was sought by the prosecution but opposed by D who asked instead for the substitution of a conviction for simple possession. In opposing a retrial D contended as follows: (a) without his disputed admissions, the circumstances were insufficient for the drawing of an inference of trafficking; (b) he would suffer irreparable prejudice if retried as the first trial had enabled police officers to acquire knowledge of the defence case and to rehearse their testimony; (c) allowing for remission for good behaviour, he had already served a term greater than any that would have been imposed on him for simple possession; (d) he had already endured a lengthy trial which lasted 25 days; and (e) there would be a time lapse before any retrial.

Held, allowing the appeal to quash the conviction and ordering a retrial, that:

  1. The prosecution’s concession on the first ground of appeal was properly made. (See para. 33.)
  2. On its face, the case against D was a strong one. His admissions, which were ruled admissible after a voir dire, were of what had come to be known as “social trafficking”. And they were supported by the circumstantial evidence. Allowing for remission for good behaviour, D had served about half his sentence for trafficking. All of these factors in respect of an offence as serious as drug trafficking would, absent strong countervailing factors, lead inevitably to a conclusion that it was in the interests of justice to order a retrial. (See para. 34.)
  3. The countervailing factors relied upon by D were not at all strong. It was not for the Court of Appeal to pre-empt the jury by assessing what weight they would give the admissions should the same again be ruled admissible. The so-called “prejudice” put forward would be suffered by every defendant facing a retrial and was not a reason for not ordering a retrial. There was nothing to suggest that the length of the trial was due to any fault of the prosecution. (See para. 35.)
  4. In all the circumstances, the interests of justice dictated that a retrial be ordered. (See para. 36)

Appeal against conviction

This was an appeal against conviction for trafficking in dangerous drugs imposed by Deputy Judge Douglas Yau in the Court of First Instance. The facts are set out in the judgment.

Editorial note: This judgment addresses — and illustrates the operation of — the factors on each side of the question of whether a retrial should be ordered in any given case.