HKSAR v. Yu Oi Kee

FAMC No. 69 of 2015

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 69 OF 2015 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACC NO. 283 OF 2014)

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BETWEEN

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D E C I S I O N

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Mr Justice Fok PJ:

1.This is an application for bail pending an application for leave to appeal to this Court against a decision of the Court of Appeal.[1] It is opposed by the respondent on the basis that, although there is a risk the applicant’s application for leave to appeal would be rendered effectively nugatory by a refusal of bail, such a result is appropriate because there is no reasonable prospect of her being granted leave to appeal.

The procedural history

2.On 5 August 2014, the applicant, who was 2^nd defendant at trial,[2] was convicted of one count of conspiracy with another (being the 1^st defendant at trial) as agents to use a document with intent to deceive their principal[3] (Charge 1) and accepting from the 1^st defendant an advantage as an agent, an inducement or reward in relation to her principal’s affairs[4] (Charge 3).  She was sentenced, on 25 August 2014, to 15 months’ imprisonment on each count, to run concurrently.

3.The applicant had been on bail pending trial and, on 25 September 2014, she was granted bail pending appeal to the Court of Appeal.[5] On 16 November 2015, the Court of Appeal dismissed her appeal against conviction and, accordingly, she resumed serving her sentence of imprisonment.  She is due to be released from prison on 25 July 2016.

4.Following the dismissal of her appeal against conviction, the applicant filed, on 24 November 2015, a notice of motion seeking a certificate from the Court of Appeal that points of law of great and general importance are involved in that court’s decision dismissing her appeal.  She also filed, on 14 December 2015, a Form B for leave to appeal to this Court.  The Court of Appeal refused the requested certificate by its decision dated 25 January 2016.

5.A corresponding application for leave to appeal[6] has also been made by the 1^st defendant, whose appeal against conviction on Charge 1 and Charge 2[7] was also dismissed by the Court of Appeal.

6.Having considered the applicant’s notice of motion applying for leave to appeal (and also that of the 1^st defendant), the Registrar wrote to the parties on 28 January 2016 to indicate that the two leave applications would be listed for an oral hearing and that the hearing was fixed for 19 May 2016.

7.It is in these circumstances that the present application for bail comes on for hearing before me.  As will be apparent, assuming the leave application is heard on 19 May 2016, the applicant will by that time have served a substantial part of her sentence.  Moreover, if leave were to be granted, there is no reasonable prospect of her appeal being heard before her expected release date.

Should bail pending the application for leave to appeal be granted in this case?

8.A single Permanent Judge of this Court has power under section 34 of the Ordinance[8] to grant bail pending an application for leave to appeal but this will generally only be exercised when two pre-conditions are met, namely: (i) there must be at least reasonable prospects of the Appeal Committee granting both leave to appeal to the Court of Final Appeal and bail pending such appeal; and (ii) there must be no real risk of absconding.[9] 

9.There is no suggestion in the present case that there is a risk of absconding and it is common ground that there is a risk that the applicant will have served most of her sentence by the time of the application for leave to appeal and all of her sentence by the time of any subsequent substantive appeal.

10.I turn to the question of whether this is a case in which there is a reasonable prospect that the Appeal Committee will grant leave to appeal and bail pending appeal.  There can be little doubt that, if leave to appeal were granted and the applicant were then still in prison, the circumstances of the present case are such that she would be granted bail pending her appeal.  So the real focus of the present application is whether there is a reasonable prospect of the grant of leave to appeal.

11.Submissions both for and against the grant of leave have been made to me by counsel for the applicant and the respondent.  It must be recognised, however, that whether or not leave to appeal will be granted is a matter for the Appeal Committee and not for a single Permanent Judge, [10]  who in due course may sit as a member of that committee hearing the leave application. It is therefore undesirable for a single Permanent Judge to take a stand on the merits of an underlying leave application in the context of an application for bail pending that application, unless that course is unavoidable.[11]

12.Since, on an application of this nature, the focus is primarily whether or not bail should be granted, the question for a single Permanent Judge is whether he can say with a high degree of confidence that the underlying leave application is not viable: that is to say, that there is no reasonable prospect of the Appeal Committee granting leave to appeal.  If so, it would follow that no leave to appeal would be granted and, since the purpose of section 34 is to grant bail pending a substantive hearing,[12] there would be no room to grant bail pending the inevitably doomed application for leave.  Sher Ali Khan v HKSAR (2006) 9 HKCFAR 791 is an example of such a case.  On the other hand, if it cannot be said with that degree of confidence that the application for leave to appeal would be doomed to fail, it would be preferable for the single Permanent Judge to refrain from expressing a view on the merits of the application for leave.  HKSAR v Chan Nai Ming, FAMC 61/2006, 3 January 2007 is an example of this approach.  Unmeritorious applications for bail pending an application for leave to appeal are, of course, not to be encouraged and the Registrar will not set down applications for bail where a summons under Rule 7 of the Rules[13] has been issued unless and until the Appeal Committee has directed a hearing of the application: see Dizon v HKSAR (2009) 12 HKCFAR 960 at [13].

13.In the present case, the Registrar has determined not to issue a summons under Rule 7 of the Rules, and has listed the application for leave to appeal for an oral hearing before the Appeal Committee.  This is a relevant consideration: see Van Weerdenburg v HKSAR (No.1) (2010) 13 HKCFAR 453 at [9].  In the light of that and notwithstanding the able submissions of Mr Tam SC, counsel for the respondent, at this hearing, I am not persuaded at this stage that the application for leave is one which has no reasonable prospect of success.  I express no concluded view on whether leave to appeal should or should not be granted.  The application should be heard by the Appeal Committee and a decision taken in due course by that committee on whether to grant leave.

14.In these circumstances, in the absence of any suggestion that the applicant would abscond or that her release from prison would be otherwise prejudicial, I conclude that it would be appropriate to admit the applicant to bail pending the application for leave to appeal on the conditions to which she has consented, namely:

(1)  Cash bail in the sum of HK$500,000;

(2)  Cash bail for surety in the sum of HK$500,000;

(3)  That she be prohibited from leaving Hong Kong and that she surrender all travel documents to the Court of Final Appeal prior to her release from custody;

(4)  That she reside at her given address;

(5)  That she report to Tseung Kwan O Police Station between the hours of 6pm and 8pm on Monday;

(6)  That she inform Tseung Kwan O Police Station and the ICAC 24 hours prior to any change of residence; and

(7)  That she surrender to this Court on 19 May 2016 before 2.30 pm.

Mr Gerard McCoy SC and Mr Albert N.B. Wong, instructed by Leung & Lau, for the Applicant

Mr William Tam SC, DDPP and Ms Samantha Chiu SPP, of the Department of Justice, for the Respondent