Retrial
80. Mr Cheung opposed an order for a retrial on two grounds. First, on the basis that a fair trial was not possible, given the absence of records of what transpired at meetings between police officers and Jacky Ma and Billy Kay. Secondly, on the basis of the lack of strength of the prosecution case.
81. In supporting her application for an order for a retrial, Ms Lai said that the prosecution had disclosed all the records relevant to those meetings of which they were aware. She said that importantly the identity of the police officers who had visited the two accomplice witnesses and on which occasions those visits had occurred was established. The police officers were available to be cross-examined at trial. Also, she said that the records of the Correctional Services Department of visits to the two accomplices, whilst they were held in their custody, could be obtained to confirm or call into question that evidence.
82. Of the strength of the prosecution case, Ms Lai invited the Court to note that the evidence of the two accomplices had been tested vigorously at trial, but nevertheless the jury had returned a unanimous verdict of guilty within 1% hours of retiring to deliberate their verdict. Also, she acknowledged that the matters in issue in the trial were narrow. There was no dispute that the applicant was in the immediate vicinity of the attack on Mr Mitchell, having travelled there with Jacky Ma. What was in issue was why he was there and what he did. She submitted that whether or not the evidence of the two accomplices was to be accepted was very much a matter for a jury.
