Double Jeopardy
(HKLRC Consultation Paper)
On 11 March 2010, the Law Reform Commission's Double Jeopardy Sub-committee published a consultation paper 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 sub-committee proposes that where "fresh and compelling" evidence subsequently comes to light in respect of a serious offence, or where there the original acquittal was the result of perjury, perversion of the course of justice or the like, the 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 provides certainty and a conclusion for the individual who has been tried, but it is unsatisfactory from the community's point of view when it allows a person to escape justice 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 jurisdictions about the effects of a strict application of the rule has led to the adoption of, or proposals for, changes in the law there.
The sub-committee 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 sub-committee were 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 the legitimate purpose of pursuing and convicting the guilty. In particular, the relaxation will apply only in respect of serious offences.
The recommendations in the consultation paper are intended to facilitate discussion and do not represent the sub-committee's final conclusions. The sub-committee would welcome views, comments and suggestions on any issues discussed in the consultation paper, and in particular the specific requests for feedback highlighted in Chapter 4. The consultation period will last until 31 May 2010.
| Press Release (PDF) (MS Word) |
| Executive Summary (PDF) (MS Word) |
| Consultation Paper (PDF) (MS Word) |