22. Appeals and Reviews


22.1   In an appeal against conviction, a prosecutor’s duty is to assist the court to achieve a just and proper disposal of the appeal. It requires the prosecutor to readily and promptly seek to remedy any error or injustice and with equal commitment seek to support a correct and proper decision of the trial court.

22.2   If an appellant is unrepresented, a prosecutor should examine the case to see if any unidentified ground of appeal might also be available.

22.3   Ordinarily a prosecutor will seek to have the conviction upheld; but if it becomes apparent that there is a proper basis for conceding an appeal, that should be explained to the court. Such a concession should be made with the consent of the Director of Public Prosecutions in appropriate cases.

22.4   If a conviction is quashed on appeal, consideration must be given to the question of a retrial. Such an assessment may be influenced by:

  1. the basis on which the appeal was allowed;
  2. the seriousness of the offence;
  3. the strength of the case against the accused, including the availability of witnesses;
  4. the lapse of time between the offending and any retrial;
  5. the extent to which the sentence has been served;
  6. the views of any victim and of law enforcement agencies.

22.5   A third or subsequent trial should be held only in exceptional circumstances.


22.6   On an appeal against sentence a prosecutor must assist the court by drawing its attention to the law and relevant decided cases in the area of sentencing for the offence in question. Cases in which sentencing guidelines or tariffs have been laid down are more helpful than cases of similar offences that are distinguishable on their own facts. Official sentencing statistics should also be provided where required. A prosecutor should address the court on relevant sentencing principles that may affect the determination of the appeal.

22.7   If a prosecutor is of the view that the sentence appealed is not authorised by law, is wrong in principle or is manifestly excessive, such a concession should be made with the consent of the Director of Public Prosecutions in appropriate cases.

Review of Sentence

22.8   The Secretary for Justice may apply to the court in exceptional cases for the review of a sentence on the basis that it has proceeded on an error of law or of principle or that it is manifestly inadequate or excessive.

22.9   The prosecutor must:

  1. identify the errors and the principles that apply;
  2. identify the authorities supporting that position;
  3. make submissions on the correct resolution of the issues.

22.10   New evidence led on a sentence appeal or review cannot operate to enable the sentence to be increased.

Case Stated

22.11   Section 84 of the District Court Ordinance, Cap 336 and section 105 of the Magistrates Ordinance, Cap 227 enable the Secretary for Justice to appeal to the Court of Appeal and the Court of First Instance respectively by way of Case Stated from a decision of the trial judge or magistrate. This is an exceptional course and will only be undertaken when the determination or verdict or order of acquittal was erroneous in point of law.