On 28 February 2012, the Law Reform Commission published a report proposing that the rule against double jeopardy (which prevents a person who has been acquitted of an offence from being tried again for the same offence) should be relaxed in exceptional circumstances in Hong Kong. The report contains the Commission's final conclusions, having considered the responses to a consultation paper on this subject issued by the Commission's Double Jeopardy Sub-committee in March 2010. The Double Jeopardy Sub-committee was chaired by Mr Paul Shieh, SC.
The Commission proposes that where "fresh and compelling" evidence came to light subsequent to an acquittal of a serious offence, or where the original acquittal was the result of perjury, perversion of the course of justice or the like, the existing rule against double jeopardy should be relaxed.
The effect of the existing rule against double jeopardy is that if a person has been previously acquitted or convicted of an offence any subsequent prosecution for the same offence will be barred. The rule stems from the notion that a person who has undergone the ordeal of a criminal trial should be left undisturbed following the final verdict, either to go on to lead a normal life if acquitted or to face the appropriate punishment if convicted.
The rule is intended to protect offenders from being prosecuted again for the same offence based on the same facts, but it is not in the interests of justice and is unsatisfactory from the community's point of view when its effect is to allow a person to escape justice and punishment for a serious offence when new and compelling evidence pointing to his guilt has emerged subsequent to the acquittal. Such situations may arise where, for instance, DNA evidence is uncovered, or where an individual admits his guilt after acquittal, safe in the knowledge that he can no longer be prosecuted. Public concern in a number of other jurisdictions about the effects of a strict application of the rule has led to proposals for, or the adoption of changes in the law.
The Commission recommends empowering the court to make an order to quash an acquittal and direct a retrial where:
(a) there is subsequent revelation of "fresh and compelling" evidence against an acquitted person in relation to a serious offence of which he was previously acquitted; or
(b) his acquittal is "tainted" (that is, it involves some interference with, or perverting of, the administration of justice, such as perjury or interference with witnesses, in the previous proceedings which contributed to his acquittal).
In recommending the relaxation of the rule, the Commission was mindful of the need for any reform to be compatible with the Basic Law and the Hong Kong Bill of Rights. A number of safeguards have therefore been incorporated to ensure that the power to quash an acquittal would not be abused and that the scope of the relaxation would be narrowly tailored to achieve the legitimate purpose of pursuing and convicting the guilty. In particular, the relaxation will apply only in respect of serious offences and not to offences only triable at the magistrates court level.
|Press Release (PDF) (MS Word)|
|Executive Summary (PDF) (MS Word)|
|Report (PDF) (MS Word)|