54. Ms Lai characterised the failure of the police and counsel of the Department of Justice to observe the duty of disclosure as being an “…unfortunate isolated incident.” Nevertheless, she offered the apologies of the respondent to the Court and the applicant for those failures. She said that the Department of Justice had taken heed of the recent judgment of this Court in HKSAR v Ip Tsz Yau,[1] in which observations were made as to the duty of disclosure and in which the applicant’s convictions had been quashed, in part as a consequence of a failure of that duty. The Director of Public Prosecutions personally was taking steps to review the guidelines on disclosure to ensure that all prosecutors “fully and properly discharge their duty of disclosure”.
55. In the result, in conceding that the appeal ought to be allowed on Ground 1, Ms Lai accepted that it was not an appropriate case in which to invite the Court to invoke the application of the proviso. However, Ms Lai asked the Court to order that the applicant be retried on the same count on a fresh indictment.
A consideration of the submissions
The law: the prosecution’s duty of disclosure
56. As Bokhary PJ observed in his judgment in the Court of Final Appeal in Hall v HKSAR “For the rationale, status, nature and scope of the prosecution’s duty of disclosure in Hong Kong, one needs only to consult the judgment which Sir Anthony Mason NPJ gave, and with which the
- ↑ HKSAR v Ip Tsz Yau (CACC 199/2015; unreported, 26 January 2017).
