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Press Summary (English)
Press Summary (Chinese)
FACC Nos 3, 4 & 5 of 2023
[2023] HKCFA 11
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
FINAL APPEAL NOS 3, 4 & 5 OF 2023 (CRIMINAL)
(ON APPEAL FROM CACC NO 185 OF 2021)
________________________
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BETWEEN
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HKSAR
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Respondent
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and
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CHEN KEEN (alias JACK CHEN) (陳克恩) (D1)
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Appellant
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in FACC 3/2023
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(1
st
Appellant)
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HAO MAY (formerly known as
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Appellant
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WANG MAY YAN) (alias MAY WANG) (D2)
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in FACC 4/2023
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(2
nd
Appellant)
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YEE WENJYE (also known as
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Appellant
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YU WENJIE) (alias ERIC YEE) (D3)
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in FACC 5/2023
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(3
rd
Appellant)
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________________________
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Before:
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Chief Justice Cheung, Mr Justice Ribeiro PJ, Mr Justice Fok PJ, Mr Justice Lam PJ and Mr Justice Gummow NPJ
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Date of Hearing:
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8 May 2023
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Date of Judgment:
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24 May 2023
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_____________________________
JUDGMENT
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Chief Justice Cheung:
1.
These appeals raise the question of whether the Court of First Instance has jurisdiction under section 4 of the Costs in Criminal Cases Ordinance (CCCO)
[1]
to award costs to the defendant in a jury trial when, without fault on his part, the trial is aborted and he has to be tried before another jury.
The facts
2.
The three appellants were indicted for charges of conspiracy to defraud and money laundering. Following a lengthy trial, they were all convicted of the charges.
[2]
Their appeals against conviction were unsuccessful before the Court of Appeal,
[3]
but ultimately allowed by this court and a retrial was ordered.
[4]
They were awarded the costs of the original trial and of the appeals.
[5]
The appellants were retried on fresh indictments before Deputy High Court Judge Bruce SC sitting with a jury.
[6]
On Day 57 of the retrial, a prosecution witness gave unsolicited evidence which was prejudicial to the appellants. The deputy judge acceded to their joint application, opposed by the prosecution, and discharged the jury.
[7]
The retrial was aborted as a result. Upon the appellants’ applications, the deputy judge awarded the costs of the aborted retrial in their favour, after holding that he had jurisdiction to do so under section 4 of the CCCO.
[8]
3.
The costs order was reversed on appeal.
[9]
The Court of Appeal held that on a proper construction of section 4 of the CCCO, a trial court has no jurisdiction to award costs to a defendant following the collapse of the trial. With leave to appeal granted by the Appeal Committee,
[10]
the proper construction of section 4 is now squarely before this court.
[11]
4.
To complete the story, following the discharge of the jury in the aborted retrial,
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