Hksar v Lee Shing Hung

CourtCourt of Final Appeal (Hong Kong)
Judgment Date29 Sep 2006
Judgement NumberFAMC29/2006
SubjectMiscellaneous Proceedings (Criminal)
FAMC000029/2006 HKSAR v. LEE SHING HUNG

FAMC No. 29 of 2006

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 29 OF 2006 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM
HCMA NO. 903 OF 2005)

_____________________

Between:

HKSAR

Respondent

and

LEE SHING HUNG

Applicant

_____________________

Appeal Committee: Chief Justice Li, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

Date of Hearing: 29 September 2006

Date of Determination: 29 September 2006

__________________________

D E T E R M I N A T I O N

__________________________

Chief Justice Li:

1. The applicant, a government servant, was convicted before the Magistrate, Ms Bina Chainrai, for offences of dishonesty under the Theft Ordinance in relation to Home Financing Allowance payments claimed and received in circumstances where there was no entitlement to such payments. He was sentenced to 150 hours of community service.

2. Deputy High Court Judge Pang set aside the conviction, holding that the basis upon which the dishonesty findings were made was unsound. He ordered a retrial even though the applicant had by then fully served his sentence, stating :

“The evidence in this case is overwhelming, and its successful appeal purely technical. The matter itself engages the very important question of whether the appellant should continue to enjoy the trust of the government and the public. In the circumstances, notwithstanding counsel’s submissions, which I have fully considered, I regard this case as one that should be remitted for retrial.” (§53)

3. Mr Wong Man Kit SC, appearing for the applicant with Ms Cancy Liu, seeks leave to appeal against the order for retrial, submitting that where, as in the present case, the sentence has been served, a retrial is usually not ordered and the order for retrial in this case constitutes a substantial and grave injustice. He criticises the matters the judge took into account in deciding to order a retrial, and submits that in the circumstances of this case, a retrial should not have been ordered.

4. In our view, the fact of having served the sentence does not of itself make an order for retrial wrong in principle. Whether a retrial should be ordered involves an exercise of discretion by the intermediate appellate court taking into account all relevant considerations...

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