Opinion | Justice secretary's new appeal rights to ensure just outcomes

By Grenville Cross

On July 14, the Criminal Procedure Ordinance (Cap.221), following Legislative Council scrutiny, was amended to provide the secretary for justice with two new rights of appeal.

The first amendment, which took immediate effect, concerns national security trials conducted by three-judge panels in the Court of First Instance (High Court).

This right of appeal, which will relate to "matters of law only", will enable the secretary for justice to invite a three-judge panel that has acquitted a national security suspect to "state a case" for the consideration of the Court of Appeal. The panel will then be required to indicate the legal reasoning resulting in its verdict.

Before, however, the secretary initiates an appeal, he will need to satisfy himself that there has been an error of law or an excess of jurisdiction.

An error of law may involve a misapplication of the governing legal principles, although it can also include a perverse verdict, meaning a finding of fact that no reasonable tribunal, having given itself proper directions, could have reached.

Although the usual suspects have criticized this reform, there is nothing novel about it. In both the District Court and the Magistrates' Courts, the secretary for justice has for long been able to appeal to a higher court ("appeal by way of case stated") if a judge or magistrate wrongly acquits a defendant because of a legal error.

In the same way that a district judge or magistrate always provides reasons for verdict, so does a three-judge panel. If, when a panel acquits a defendant, it is clear that it has done so because of a legal error, it is obviously in the public interest that the secretary for justice should have a right of appeal.

Both of these new rights of appeal are, therefore, to be welcomed, not least because each, in its own way, will help to rectify miscarriages of justice that arise in trials in the High Court. Their enactment not only provides wholly justifiable remedies for the secretary for justice to invoke, but also helps to maintain public confidence in the efficacy of the criminal justice system

If the secretary for justice wins his appeal, the Court of Appeal can then reverse the verdict and order that the trial be resumed, or direct that the defendant be retried, and the case can then proceed to its natural conclusion. The community itself has a vested interest in seeing those accused of violating its laws properly tried, and the defendants themselves are entitled to have their cases determined on a correct footing.

In any event, what is sauce for the goose is also sauce for the gander, and a defendant has always been able to appeal against his or her conviction if it is erroneous. It makes no sense for prosecutors, in an appropriate case, not to enjoy a similar right. They are, after all the custodians of the public interest, and just outcomes in criminal cases should not be thwarted because of legal blunders.

There is, of course, given their quality, no reason to suppose that the three-judge panels will blunder, but it is sensible for the secretary for justice to have a right of appeal should such an eventuality ever arise.

In like vein, the secretary for justice will, after a second amendment to the Criminal Procedure Ordinance on July 14, and on a date to be fixed by him, also acquire a right of appeal in situations in which, during a jury trial, a judge erroneously finds, at the end of the prosecution case, that the defendant has no case to answer.

The commencement date for this reform can hopefully be expedited, not least because it is one that the Court of Appeal has itself called for. In 2022, it gave an opinion in circumstances where four defendants had been wrongly acquitted in three trials by two separate judges, causing what it described as "a serious miscarriage of justice" in each case (CASJ 1/2021).

This occurred after the two judges "impermissibly usurped the position of each jury and incorrectly withdrew the cases before their respective juries could consider them". Whereas a judge can always rule there is no case to answer if the evidence is insufficient, this discretion was wrongly exercised in all three cases, with dire consequences. After four alleged drug traffickers walked free after the judges improperly instructed the juries to acquit them because they thought they had no case to answer, they fled Hong Kong, and who can blame them.

The Court of Appeal opined that there should be a remedy available to the secretary for justice in this situation, just as there is for the attorney general in the United Kingdom. After all, if defendants are to be acquitted, it should be on the merits of the case, and not because a judge has bungled things.

In January, therefore, the Department of Justice proposed, based on the UK paradigm, that prosecutors should enjoy a general right of appeal when a judge erroneously decides that a jury trial should be terminated, and withdraws the case from the jury's consideration, and this has now become law. It is clearly in the public interest that there should be a means of redress if a defendant facing serious charges is wrongly acquitted halfway through the trial.

If, under the reform, the Court of Appeal is satisfied that a judge's ruling of no case to answer involves an error of law or principle, it will be empowered to vary the ruling. It can then either direct that the trial resumes, or that the defendant be retried, or that the defendant be acquitted (if it considers a fair trial is not possible). If, moreover, the Court affirms the no-case ruling, the defendant must be acquitted of the offense.

The new mechanism does not affect the jury's own verdict, for which it does not have to give any reasons, although a defendant can always challenge his or her conviction on appeal.

Both of these new rights of appeal are, therefore, to be welcomed, not least because each, in its own way, will help to rectify miscarriages of justice that arise in trials in the High Court. Their enactment not only provides wholly justifiable remedies for the secretary for justice to invoke, but also helps to maintain public confidence in the efficacy of the criminal justice system.

The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong Special Administrative Region.

The article was first published in China Daily.