The Law Reform Commission's Double Jeopardy Sub-committee is seeking public views on its proposal to relax the rule against double jeopardy in exceptional circumstances.

The existing rule prevents a person who has been acquitted of an offence from being tried again for the same offence.

According to the consultation paper released today, where "fresh and compelling" evidence subsequently comes to light in respect of a serious offence, or where the original acquittal is the result of perjury, perversion of the course of justice or the like, the rule against double jeopardy should be relaxed.

Sub-committee chairman Paul Shieh said the existing rule provides certainty 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 and punishment 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 other jurisdictions about the effects of a strict application of the rule has led to proposals for, or the adoption of, changes in the law."

The sub-committee recommends empowering the court to make an order to quash an acquittal and direct a retrial where:

* 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

* his acquittal is "tainted" (that is, the acquittal 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).

A number of safeguards have been incorporated to ensure that the power to quash an acquittal will not be abused and that the scope of the relaxation will be narrowly tailored to the legitimate purpose of pursuing and convicting the guilty. 

The safeguards include:

* the proposed reform will apply only to serious offences;

* the consent of the Director of Public Prosecutions will be needed before law-enforcement agencies can reinvestigate an acquittal case;

* only the Court of Appeal will have the jurisdiction to quash an acquittal and order a retrial;

* new evidence which could have been found by law-enforcement agencies acting with reasonable diligence will not meet the threshold of the "fresh and compelling evidence" exception;

* before quashing an acquittal and ordering a retrial, the Court of Appeal must be satisfied that it is in the "interests of justice" to do so;

* prohibitions on publication apply to protect the identity of the accused to prevent prejudicial publicity from affecting the fairness of any retrial; and

* the prosecution will have only one opportunity to apply for a retrial in respect of any particular case that originally resulted in an acquittal.

Appeal mechanism continues

"The recommendations do not concern the quashing of a conviction by way of appeal. The existing law in Hong Kong already provides for procedures and mechanisms for a convicted person to appeal against his conviction, and for the court's power, in some circumstances, to order a re-trial following the quashing of a conviction.

"The recommendations concern only the quashing of an acquittal, which the courts are presently powerless to do because of the rule against double jeopardy," Mr Shieh said.