Deputy President, the Criminal Procedure (Amendment) Bill 2023 (“the Bill”) seeks to introduce a mechanism to address the legal lacunae in the current criminal appeal system arising from the inability of the prosecution to appeal against the possible error of a judge of the Court of First Instance (“CFI”) of the High Court in (1) making a no-case ruling, or (2) giving a verdict of acquittal, etc., in order to avoid miscarriages of justice. It is the fundamental responsibility of the Legislative Council to improve the law and plug the loopholes.

At present, the criminal cases heard by CFI of the High Court generally involve a jury. In all cases where the jury returns a verdict of acquittal, the prosecution cannot appeal against such a verdict. This fundamental principle of the common law is undisputed in HKSAR. The Bill does not affect this principle in any way.

However, in reality, at various stages before the judge directs the jury to give a verdict (including after the prosecution has submitted its evidence, after the defence has submitted its evidence, or even after both the prosecution and the defence have submitted their evidence and made their closing submissions), the judge may, on erroneous grounds and in the absence of the jury, rule that the prosecution’s evidence is grossly inadequate and that the defendant has no case to answer, thereby directing the jury to acquit the defendant. Under the current legislation, the prosecution cannot appeal to correct the error and the defendant cannot be retried in such circumstances, resulting in an irreversible miscarriage of justice.

In 2021, the defendants in three international drug trafficking cases were acquitted as a result of the no-case rulings by the CFI judges. Last year, in response to the legal question raised by the Secretary for Justice in relation to these cases, CFI explicitly stated that these no-case rulings were erroneous and that the judges concerned impermissibly usurped the function of the juries. However, there is currently no statutory procedure for the prosecution to lodge an appeal against such errors, so the loophole needs to be plugged. As early as in 2003, the United Kingdom already introduced relevant legal reforms through the Criminal Justice Act. This is the first situation that the Bill seeks to address.

The second situation that the Bill seeks to address is that where CFI of the High Court hears cases endangering national security, the Secretary for Justice may, in accordance with Article 46 of the Hong Kong National Security Law (“HKNSL”), choose to form a panel of three professional CFI judges (“the Panel”) to try the case without a jury. CFI of the High Court had not encountered this particular situation prior to the implementation of HKNSL. This is a new development that needs to be examined with foresight.

The problem we face is that, in the absence of a jury, if the Panel of the High Court erroneously acquits a defendant who has endangered national security, there is no statutory procedure under the current legal framework for the prosecution to appeal against such an error. As these cases concern national security, the legal loopholes are indeed worrying.

In fact, under the current legislation, the prosecution may appeal against a wrongful acquittal by a professional judge in the District Court or the Magistrates’ Courts without a jury. Based on Hong Kong’s judicial practice, the existing mechanism for appealing against acquittals in the District Court or the Magistrates’ Courts has proved effective, and there is no reason at all to make an exception for national security cases in the High Court. The loopholes must be closed. Reference can be made to the established mechanisms under the District Court Ordinance and the Magistrates Ordinance. This is also the direction taken by the Bill, which the Liberal Party considers to be absolutely the right decision.

Regarding the first situation, the Bill provides that the Court of Appeal may only reverse or vary a no-case ruling of CFI of a High Court if it is satisfied that that ruling involves an error of law or principle.

Regarding the second situation, under the well-established mechanism, the Court of Appeal can also reverse a verdict of acquittal only if the Panel of the High Court has misinterpreted the law, or if the Panel has reached an erroneous conclusion or finding of fact that no reasonable judge applying his/her mind to the proper considerations and giving himself/herself the proper directions, could have come to. The mechanism can strike a balance between the reasonable requirements of national security, judicial fairness and the protection of human rights.

The proposed amendments in the Bill are necessary, legitimate and timely.