HKSAR v. Kwan Ka Ho

CACC 38/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 38 OF 2017

(ON APPEAL FROM DCCC NO. 980 OF 2015)

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D E C I S I O N

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1.The applicant was convicted after trial on 14 February 2017 by District Court Judge Dufton, together with six co-defendants, of an assault occasioning actual bodily harm to Tsang Kin Chiu on 15 October 2014. The applicant was stipulated as the 6^th defendant on the charge sheet and was referred to by the judge as D6. On 17 February 2017, the applicant, together with his co-defendants, was sentenced to 2 years’ imprisonment for that offence. On 27 February 2017, the applicant filed Form XI with the Court, by which he gave notice of his application for leave to appeal against conviction and sentence. Of sentence, he asserted that “the prison term is too long.”

Grounds of appeal against conviction and sentence

2.No perfected grounds of appeal against conviction and sentence have been filed with the Court as yet.  However, the draft undated and unsigned perfected grounds of appeal against sentence are exhibited to the 6^th applicant’s affirmation filed with the Court on 7 August 2017.  In those draft grounds of appeal it was contended, inter alia, that “the judge erred in adopting a starting point of 30 months imprisonment”.

Application for bail pending appeal

3.By a summons filed with the Court on 7 August 2017, the applicant seeks the grant of bail pending the determination of his appeal by the Court of Appeal.  In the 6^th applicant’s affirmation filed in support of the application for bail, he explained the failure to file perfected grounds of appeal against conviction and sentence:

“ I am advised by my Counsel and legal representatives that my legal team needs to apply for transcripts of certain parts of the prolonged proceedings at the District Court in order to properly prepare the perfected grounds of appeal against conviction, and as such the perfected grounds of appeal against conviction is not ready for filing. Having said that, my legal representatives are in a position to prepare the draft perfected grounds of appeal against sentence on the material currently available (which is now annexed hereto).”

4.Then, the 6^th applicant explained that he made his application for bail pending appeal solely for the reason of “time factor”.  Of that issue, he asserted that “…if bail is not granted, there is a real likelihood that I would have served a substantial part (if not all) of my sentence of imprisonment before the outcome of my appeal is known.”

5.The applicant invited the Court to note that all his co-defendants at trial had been granted bail on earlier occasions:

(i) the 2^nd, 4^th and 7^th applicants were granted bail pending appeal on 28 June 2017 by Yeung VP;

(ii) the 1^st applicant was granted bail pending appeal on 6 July 2017 by Lunn VP; and

(iii) the 3^rd and 5^th applicants were granted bail pending appeal on 14 July 2017 by Lunn VP.

6.In a letter filed with the Court on 8 August 2017, Ms Clara Ma, for the respondent, informed the Court:

“ Without conceding that the grounds of appeal against conviction and sentence (the same of which have (not?) yet been filed) by D6 are reasonably arguable, the Respondent submits that there is force in the argument that, for the purpose of the bail pending appeal by D6, the application should be disposed of in the same manner as that of D1 to D5 and D7 in that if bail is not granted, there is a risk that D6 may have served a sentence longer than he should have served.

Purely on this basis, the Respondent will not object (to) D6’s application for bail pending appeal.”

7.In granting applications for bail pending appeal of the 2^nd, 4^th and 7^th applicants on 28 June 2017, Yeung VP said of their applications for leave to appeal against sentence:

“The maximum sentence for an offence of assault occasioning actual bodily harm is three years’ imprisonment (s 39 of Offences against the Person Ordinance, Cap 212, Laws of Hong Kong).

Without in any way underestimating the seriousness of what the applicants and his colleagues did, it is, in my view, highly arguable that the 2½ year starting point, 6 months off the maximum sentence, adopted by the judge is manifestly excessive and that a significantly lower starting point should be adopted.”

8.Of the processing of the applications for leave to appeal, Yeung VP observed that those applications had yet to be set down for hearing before a single judge of the Court of Appeal.  Pausing there, that remains the position today in respect of all six applicants who have been granted bail pending appeal.

9.Yeung VP went on to note:

“ Bearing in mind the number of defendants, the length of the trial, the length of the judgment and the voluminous transcripts and documents involved, it is unlikely that the appeal proper can be dealt with within the next 6 to 9 months by which time, the applicants would have completed a major part, if not the entirety of their 2 years’ imprisonment.

Unless grant bail pending appeal, there is also a risk that the applicants would have served a sentence longer than they need to serve even if their convictions are maintained.”

10.I granted bail to the 1^st, 3^rd and 5^th applicants on the same grounds.  As I said on those occasions, and reiterate today, I am satisfied that the respondent’s decision not to oppose the application for the grant of bail pending appeal on the basis articulated in their letter was entirely realistic and most sensible.

Conclusion

11.In all the circumstances, I am satisfied that it is appropriate to grant the applicant bail pending the hearing of his appeal.  The applicant is granted bail on:

•   his undertaking to comply with the directions of the Court to attend any and all hearings of his application for leave to appeal against conviction and sentence;

•   his deposit of $100,000 with the Court;

•   his surrender of all his travel documents, save his Hong Kong identity card;

•   his undertaking not to leave Hong Kong, save with the leave of the Court; and

•   his undertaking to reside at the address supplied to the Court.

Ms Clara Ma, SPP, of the Department of Justice, for the Respondent

Ms Charlotte Draycott, SC and Ms Priscilia Lam, instructed by Rowdget W. Young & Co, for the Applicant (6^th Applicant)