Secretary for Justice v. Lau Kwok Leung

FAMC Nos. 43, 44, 46, 47, 48, 49, 51 & 55 of 2017

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NOS. 43, 44, 46, 47, 48, 49, 51 & 55 OF 2017 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CAAR NO. 3 OF 2016)

_______________________

BETWEEN

Before:  Mr Justice Ribeiro PJ in Chambers

Date of Hearing and Ruling :  24 November 2017

________________________

RULING ON BAIL

________________________

Mr Justice Ribeiro PJ:

1.Thirteen defendants were convicted by the Magistrate, Mr Jason Wan Siu-ming, of unlawful assembly (and certain other offences) arising out of a demonstration in the Legislative Council Complex on 13 June 2014.[1] Their appeals against conviction for unlawful assembly were dismissed, as were applications for leave to appeal to the Court of Final Appeal against such conviction.[2]  Thereafter, the Secretary for Justice was granted leave to apply for their sentences (which were for periods of community service) to be reviewed by the Court of Appeal.

2.On the sentence review, giving reasons dated 11 September 2017,[3] the Court of Appeal substituted periods of imprisonment for the community service orders imposed below.  In so doing their Lordships referred to principles which they had applied in their recently-delivered sentence review judgment in Secretary for Justice v Wong Chi Fung & Others,[4] a case also involving convictions for unlawful assembly. 

3.I should say at once that I am not seeking to suggest that the factual and other circumstances of that case are similar or comparable to the circumstances of the present case.    I mention the Wong Chi Fung case simply because it provides relevant background for present purposes.

4.In that case, the three respondents successfully applied to the Appeal Committee for leave to appeal against the sentences of imprisonment substituted by the Court of Appeal.  Leave was granted both on the question of law and the substantial and grave injustice basis, raising four issues to be dealt with on appeal as set out in the Determination dated 7 November 2017.[5] The appeal will be heard on 16 January 2018.

5.Meanwhile, 12 among the 13 respondents to the sentence review in the present case (whom I shall refer to as the 12 “applicants”) had lodged applications to the Court of Appeal for certification[6] of a total of 11 questions as raising points of law with a view to seeking leave to appeal to the Court of Final Appeal.  In dealing with their applications,[7] the Court of Appeal took note of the Determination in the Wong Chi Fung case and, in the light of the issues to be dealt with in that appeal, certified four of the questions proposed by various combinations of applicants as involving points of law of great and general importance, reflecting the first two issues identified in the Determination. 

6.All 13 applicants subsequently applied for leave to appeal.  Apart from the questions certified by the Court of Appeal, various applicants seek certification and leave in respect of certain additional questions.  Certain applicants also intend to seek leave on the substantial and grave injustice basis.

7.Those events form the background for the present application which is mounted by eight of the 13 applicants for bail.  Although in several cases, the summonses state that the application is for bail pending determination of the appeal, that statement is obviously defective since a refusal of leave would mean that there will be no appeal.  I therefore treat all the summonses as applications for bail pending the hearing of the leave applications.

8.The principles and the practice of this Court regarding applications for bail pending the hearing of a leave application or, where leave is granted, pending the hearing of a substantive appeal have recently been summarised by Mr Justice Fok PJ in HKSAR v Yu Oi Kee.[8]  It is only in exceptional cases that bail pending the leave application hearing (as opposed to the hearing of the appeal) will be granted.[9]  Bail will not be granted unless there is at least some reasonable prospect of the applicant obtaining leave to appeal to the CFA and there is no real risk of the applicant absconding.[10] Where those conditions are satisfied, an important consideration is whether a refusal of bail is likely to render the application nugatory by the passage of time.[11]

9.In the present case, the Secretary for Justice does not oppose the grant of bail on appropriate terms.  Mr David Leung SC[12] accepts that there is no real flight risk and, while making no concessions as to the arguability of the points on which leave is sought, also accepts that it cannot be said that the applications are doomed to fail.

10.I am satisfied that this is, exceptionally, a proper case for the grant of bail pending hearing of the leave application. The Appeal Committee is of course entirely free to refuse leave even though the Court of Appeal has certified certain questions of law, but the fact of such certification makes it undesirable for a single Permanent Judge to refuse bail at this stage on the basis of a ruling that the leave applications are wholly lacking in merit.  The arguability of the points raised in a case like the present is properly left for determination by the Appeal Committee.  Since, as Mr Leung SC acknowledges, a refusal of bail would mean that the applicants are likely to have served all or a substantial part of their sentences by the time their leave applications are determined, bail should be granted to avoid their applications being rendered nugatory.

11.I therefore grant bail on terms which have been agreed between the parties, namely, for cash bail of $10,000 for each applicant and the usual terms as to remaining in Hong Kong, the surrender of travel documents, reporting to a specified police station and residing at a reported address.  The details will be dealt with by my clerk.

12.I wish to make it clear that the grant of bail does not imply that the Appeal Committee will accept that the proposed appeals are reasonably arguable.  The applicants should understand that if they are refused leave to appeal or if leave is granted and their appeals fail, they will be required to return to prison to serve out their sentences.

13.As I have indicated, the substantive appeal in the Wong Chi Fung case is fixed for hearing on 16 January 2018.  The Registrar will fix a date for the hearing of the leave applications in the present case shortly after the Court issues its judgment in that appeal. 

14.I should also make it clear that on the hearing of the leave applications, counsel must agree amongst themselves how common arguments will be presented without undue repetition.  The Appeal Committee will not entertain submissions by different counsel each making the same arguments.

Mr Martin Lee SC, instructed by Ho, Tse, Wai & Partners, assigned by the Director of Legal Aid, for the Applicants (D3, D5, D12 & D14) in FAMC 43, 44, 46 & 47/2017

Mr Osmond Lam and Ms Jacquelyn Ng, instructed by Sanny Kwong & Co., for the Applicants (D7 & D8) in FAMC 48 & 49/2017

Mr Hectar Pun SC and Mr Anson Wong, instructed by Bond Ng Solicitors, for the Applicant (D2) in FAMC 51/2017

Mr Douglas Kwok, instructed by Bond Ng Solicitors, assigned by the Director of Legal Aid, for the Applicant (D15) in FAMC 55/2017

Mr David Leung SC, DPP (Ag.), Ms Vinci Lam SADPP and Mr Derek Lau SPP, of the Department of Justice, for the Respondent in FAMC 43, 44, 46, 47, 48, 49, 51 & 55/2017