Conclusion
83. Of the fairness of a retrial, we were satisfied that the fact that there existed only very limited records of the conversations held by police officers and two accomplice witnesses was to be viewed in the context that the identity of those police officers was established. Witness statements could be taken from them and they could be made available for cross-examination. Such disadvantage as there was to the defence arising from the absence of records of those conversations was a matter in respect of which a trial judge could give appropriate directions to the jury. The strength of the case was sufficient for it to be appropriate for it to be considered by a jury.
84. Accordingly, we ordered that the applicant be retried on a fresh indictment to be filed with the Court within 14 days and that the matter come before the Listing judge for the fixing of trial dates within 28 days of the judgment. Also, having regard to the passage of time since the commission of the offence and the fact that the applicant had been arrested first of all in December 2009, we ordered that the trial be expedited. Finally, having considered Mr Cheung’s application that the applicant be granted bail pending his retrial, nevertheless we were satisfied that it was appropriate that he be remanded in custody and we so ordered.
| (Michael Lunn) Vice President |
(Peter Cheung) Justice of Appeal |
(Jeremy Poon) Justice of Appeal |
