HKSAR v. Chan Yiu Shing and Others

(Ruling 2)

HCCC 41/2016

[2018] HKCFI 306

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 41 OF 2016

_______________

_______________

_____________________________________________________________

RULING ON THE 3^rd DEFENDANT’S APPLICATION FOR BAIL

_____________________________________________________________

1.On the first day of trial, Mr John Haynes, counsel for the 3^rd defendant, made application for the 3^rd defendant to be admitted to bail.

2.The 3^rd defendant was arrested on 14 June 2015 for the offence of Conspiracy to cause explosion, or making or keeping explosives with intent to endanger life or property, contrary to section 54(a) of the Crimes Ordinance, Cap 200.  He was charged with this offence together with five others.

3.The 3^rd defendant was later committed to stand trial in the Court of First Instance on one count of conspiracy to make explosives, contrary to sections 55, 159A and 159C of the Crimes Ordinance (Count 1), two counts of possessing explosives, contrary to section 55 of the Crimes Ordinance (Counts 3, 6) and one count of attempting to make explosives, contrary to sections 55 and 159G of the Crimes Ordinance (Count 5). Count 6 was an alternative to Count 5.

4.On the first day of trial the prosecution announced that they would not proceed against the 3^rd defendant on Count 5 and would offer no evidence in relation to it.

5.The 3^rd defendant has been in custody since the day of his arrest.

6.Mr Haynes makes this application principally on the following basis.

7.Firstly, as to the time that the 3^rd defendant has been in custody, that is for nearly 18 months. 

8.Secondly, as to the 3^rd defendant’s character and background.  Mr Haynes submits that the 3^rd defendant is a person of good character.  At the time of the offence, the 3^rd defendant was 22 years of age.  He had completed tertiary education with an engineering qualification and was in employment.  He has a clear record.  He is a Hong Kong permanent resident and lives with his parents.  He has the support of his family and friends.  He has displayed a responsible attitude whilst in custody.  In addition, the 3^rd defendant has dual nationality.  He is a Chinese national as well as an Italian national. 

9.Thirdly, as to the level of seriousness of the offences that the 3^rd defendant now faces, Mr Haynes submits that the seriousness of the case against him has diminished.  He points to the change of charges from what was initially laid against the 3^rd defendant, and to the recent decision by the prosecution not to proceed with Count 5 which concerned allegations of attempting to make explosives, namely triacetone triperoxide, commonly known as TATP.

10.Mr Haynes argues that the 3^rd defendant is not a flight risk and should be admitted to bail with an appropriate set of stringent conditions to address any concern about him absconding, including substantial cash deposits, not to leave Hong Kong and to surrender all travel documents, to report to the local police station three times a week, to reside at his parents’ address and to be subject to a curfew.

11.In support of the 3^rd defendant’s application for bail, I was presented with testimony from his mother and stepfather, as well is his father, who all live on Lamma Island, and who all testified as to the 3^rd defendant’s good character and their preparedness to ensure he abides by his bail conditions and support him during the course of the trial.  It was apparent that they are deeply concerned about the 3^rd defendant and are very supportive of him.  Father Franco Mella testified on behalf of the 3^rd defendant.  He has seen him from time to time in his visits to prison.  He spoke positively about his character and personal disposition.

12.Mr Jonathan Man, for the prosecution, opposes the application on the basis that the charges the 3^rd defendant faces are very serious, involving allegations that he made explosives for pyrotechnic effect.  He briefly outlines the strength of the evidence which includes surveillance evidence of the activities of the 3^rd defendant and others, and the finding of certain chemical substances and apparatus for the making of an explosive on his person and at his home.  He notes he faces three counts on the indictment that each have a head sentence of 14 years’ imprisonment and upon conviction of these offences is likely to receive a substantial term of imprisonment.  Although, I should point out that Mr Haynes in his submissions to me made reference to a case in the magistracy where a person was convicted for the same statutory offence in summary jurisdiction for the possession of smoke cakes for which he received a term of imprisonment of three months.  All I can say about that is that each case depends on its own particular facts and circumstances.  I have to deal with the case alleged against the 3^rd defendant and the evidence the prosecution say they will present against him.

13.I have given this application anxious thought and to the very ably presented submissions by Mr Haynes on behalf of the 3^rd defendant.  I must observe that the time in custody of nearly 18 months before trial was a matter that I seriously took into account.  Unreasonable delay may be a factor in favour of bail.  Although, this factor would necessarily have to be taken into account together with all other relevant factors in deciding whether or not to grant bail.

14.I have borne in mind the principles of bail.  A court may take into account a range of relevant matters when deciding whether or not to grant bail.  The presumption of bail can be rebutted by the nature of the offence, the risk of danger to the public, or the likelihood that the trial could be affected by the defendant absconding or influencing the witness. There is also the factor that I have mentioned of unreasonable delay.  See HKSAR v Vu Thang Duong [2015] 2 HKLRD 502, at paragraphs 13 to 16.

15.I have decided, given the seriousness of the allegations against the 3^rd defendant and the state of the evidence against him, that there is an unacceptable risk of him not attending a court appointed date if admitted to bail, even on the suggested stringent conditions. 

16.I therefore for the foregoing reasons refuse the application.

Mr Jonathan Man, SADPP, and Mr Gary Leung, SPP of Department of Justice, for HKSAR

Mr John Haynes, instructed by Krishnan & Tsang, assigned by Director of Legal Aid, for the 3^rd defendant