Retrial ordered in wounding case

PUBLISHED : Thursday, 10 March, 1994, 12:00am
UPDATED : Thursday, 10 March, 1994, 12:00am

THE Court of Appeal yesterday ordered a man to be retried even though it conceded that all the procedures in the lower courts prior to his first trial were null and void.

So Mun-sing, 40, a suspected car smuggler, had been sentenced to 12 years' jail in October 1992 after he admitted wounding three police officers by steering his vessel into a police launch on anti-smuggling patrol in Tolo Harbour in January 1991.

On appeal Philip Dykes, for So, submitted that the convictions should be quashed as the Governor's consent had not been obtained prior to prosecution.

The Crown conceded that the consent was necessary as So was an illegal immigrant committing an offence in Hong Kong's waters.

Margaret Crabtree, for the Crown, argued that So should be retried.

At issue during the hearing last month was whether the Court of Appeal could and should order a retrial.

If a retrial were not ordered, the quashing of the conviction would operate as an acquittal and So could not be recharged with the same offence.

Mr Dykes argued that a retrial could not be ordered as the committal proceedings sending So for the trial at the High Court were null. He said So was entitled to a proper committal where a magistrate decides if there is enough evidence to commit a defendant for trial in the High Court.

Delivering judgment yesterday, Mr Justice Power rejected this argument, saying So had already had a committal proceeding, even though it was invalid.

The court also comprised the Chief Justice, Sir Ti LiangYang, and Mr Justice Silke.