HKSAR v. Custodio Arturo Balbago

CACC 242/1993

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 242 OF 1993

(ON APPEAL FROM DCCC NO. 387 OF 1993)

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D E C I S I O N

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1.This is an application for the withdrawal of a warrant for arrest of the applicant, which was issued on 7 July 1993 by McDougall JA, following the failure of the applicant to answer to his bail at the Court of Appeal for the hearing of his application for leave to appeal against sentence.

2.On 4 May 1993, the applicant was convicted by Mr Registrar O’Donnell, sitting as a Deputy Judge of the District Court, on his own plea of guilty to an offence of possession of a firearm and ammunition without a licence, namely a 9 mm calibre automatic pistol and 50 rounds of 0.38 calibre bullets, contrary to section 13(1) and (2) of the Firearms and Ammunition Ordinance, Cap. 238.  The applicant was sentenced to 9 months’ imprisonment.

3.On 9 June 1993, the applicant was granted bail pending appeal by Kempster VP, under conditions which included that he report daily to the Airport Police Station and that he surrender his United States of America passport.

4.On 15 June 1993, the applicant failed to report to the police as required.

5.On 7 July 1993, on his failure to attend the hearing at the Court of Appeal, his bail was revoked and a warrant issued for his arrest.

6.On 15 December 1993, this Court ordered the applicant’s cash bail of $7,500 estreated.

7.On 4 October 1994, the application for leave to appeal against sentence was dismissed by this Court for “want of prosecution”.

8.Exhibited to an affidavit of WDSIP Wu Miu Yee, filed with the Court on 21 June 2016, is a copy of the applicant’s Certificate of Death, which states that the applicant died on 18 April 2011 in Stafford, Fort Bend County, Texas.  The Certificate of Death was certified as a true copy on 27 June 2013 by Geraldine R. Harris, State Registrar of the Department of State Health Services in the County of Travis, in the state of Texas.

9.In all circumstances, I am satisfied that it is appropriate to grant the application to withdraw the warrant for the arrest of the applicant and make the order that the applicant’s passport, which is held in the District Court, be surrendered forthwith to the Consulate of the United States of America in Hong Kong, which order I make.

Mr Ira Lui, SPP, of the Department of Justice, for the responden