HKSAR v. Singh, Ramanjit

HCCP 194/2018

[2018] HKCFI 704

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 194 OF 2018

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Before:  Hon Zervos J in Chambers

Date of Hearing:  27 March 2018

Date of Reasons for Decision:  27 March 2018

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REASONS FOR DECISION REFUSING BAIL

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Introduction

1.The applicant is before the courts in relation to two cases.  In the first case he has been charged with the offence of handling stolen goods of a robbery, and in respect of the second with the offence of robbery.  He applies to this Court to be admitted to bail, having had bail refused in the Magistrates’ Court in relation to the second case. 

2.In respect of the first case, the applicant is one of three defendants who is charged with handling of stolen goods from a robbery that took place on 12 March 2017.  The case is now in the District Court in DCCC 595 and 905 of 2017 and fixed for trial to commence on 7 May 2018. On 14 March 2017, the applicant left Hong Kong and went to mainland China.  He returned on 15 July 2017 and was arrested and charged in relation to this case and granted bail.

3.In respect of the second case, the applicant is one of five defendants charged for a robbery that took place on 9 February 2018.  The case is likely to be transferred to the Court of First Instance after the consolidation of two cases in the Magistrates’ Court in KCCC 621/2018 and KCCC 486/2018.  The applicant was arrested and charged in relation to this case on 21 February 2018 and taken into custody.  He made a series of appearances before the Magistrates’ Court on 23 February, 2, 9, 16 and 23 March 2018.  On each occasion, he applied for bail which was refused. 

Application for bail

4.The defendant now applies for a review of the refusal of bail in relation to the second case pursuant to section 9J(1) of the Criminal Procedure Ordinance, Cap 221, (the CPO).  On the hearing of such an application, a judge may confirm, revoke or vary the decision, and may make such other order in the matter including an order as to costs as he thinks just. 

5.Under section 9D, an accused has a right to bail but it may be refused in the particular circumstances as set out in section 9G. 

6.Section 9G(1) provides that a court need not admit an accused to bail if it appears that there are substantial grounds for believing that he will (a) fail to surrender to custody, or (b) commit an offence while on bail, or (c) interfere with a witness or pervert or obstruct the course of justice.  As provided by subsection (2), the court in forming its opinion under subsection (1) may have regard to:

“(a) the nature and seriousness of the alleged offence and, in the event of conviction, the manner in which the accused person is likely to be dealt with;

(b) the behaviour, demeanour and conduct of the accused person;

(c) the background, associations, employment, occupation, home environment, community ties and financial position of the accused person;

(d) the health, physical and mental condition and age of the accused person;

(e) the history of any previous admissions to bail of the accused person;

(f) the character, antecedents and previous convictions, if any, of the accused person;

(g) the nature and weight of the evidence of the commission of the alleged offence by the accused person;

(h) any other thing that appears to the court to be relevant.”

7.As I stated in HKSAR v Vu Thang Duong [2015] 2 HKLRD 502, at paragraph 16:

“The relevant provisions allow the court to 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 a witness. An unreasonable delay in custody, in the particular circumstances of the case, may be a factor in favour of bail. Of course, such a factor would be taken into account together with all other relevant factors in deciding whether or not to grant bail.”

Security measures

8.High level security measures have been put in place to address the risk assessment of the relevant authorities for violence or escape by the applicant.  I have given approval for security measures to be implemented in relation to the proceedings before me.  It seems that the relevant authorities have based their risk assessment on the subject matter of an Interpol Red Notice.  Such a notice informs all member countries that a person is wanted based on an arrest warrant or equivalent judicial decision issued by a country or international tribunal. 

9.I wish to make it clear that the information supplied in support of the security measures sought to be put in place, and my approval of them, do not in any way have a bearing on, or influence the application for bail, except where the information supplied may be repeated in support of, or relevant to the application. 

10.I have raised with Mr Bobby Cheung, for the respondent, whether any such information is to be put before the Court in relation to the application before me.  I have been informed by him that no submission will be made to me, notwithstanding the high level of security measures that have been sought and implemented.  He has explained that on instructions he cannot confirm or deny the above matters, even though it may be viewed as a relevant factor in deciding whether or not to grant bail.  

11.As I have stated, I have not taken these matters into consideration when addressing this application.

Applicant’s submissions

12.The applicant is 29 years of age.  He was born in India and holds an Indian passport.  He came to Hong Kong with his family when he was 9 years of age.  I am informed that he attended local schools in Hong Kong and at the time of the second case he was working as a driver for the firm of solicitors that are acting for him.  He also holds a Hong Kong Permanent Identity Card.  I am also informed that he resides in Hong Kong with his girlfriend and their two young children.  Both his parents also reside in Hong Kong and are holders of a Hong Kong Permanent Identity Card.  It appears that he together with his family went back and lived in India for one year in 2015.  I am also told that he also travels very frequently to mainland China.

13.Mr David Boyton, for the applicant, applies for bail on his behalf on conditions that would allay any concerns that he would abscond, interfere with witnesses or commit any further offences.  He contends that the two cases alleged against the applicant are circumstantial and the evidence in both cases is weak.  He submits that the applicant is not likely to abscond given his strong family and community ties to Hong Kong, and that he is not likely to commit any further offences on bail or interfere with witnesses given the state of the case against him.  He questions the evidence against the applicant in relation to both cases which he describes as being tenuous, and advances an alibi defence in relation to the second case.

Prosecution’s submissions

14.Mr Cheung opposes the applicant’s application for bail.  He provides a brief overview of the two cases.

15.The first case allegedly occurred in the early morning on 12 March 2017 and involved a gang of South Asian men attacking a businessman who was returning home with two suitcases containing a total of US$324,600 and Euro$50,000 in cash.  The applicant is one of three defendants charged with handling stolen goods from the robbery and the trial is fixed to commence in the District Court on 7 May 2018.  The applicant is linked to the stolen goods of the robbery through his association and movements with one of the other defendants at the relevant time, as well as being located and pursued by the police at a location where the suitcases and the money were recovered.  The applicant was able to escape and on 14 March 2017 left Hong Kong for mainland China.  He returned on 15 July 2017 and was arrested and charged for this offence.  I was informed by Mr Boyton that the applicant was detained by the authorities in mainland China for overstaying and returned to Hong Kong.  

16.The second case in relation to which this application for bail is made, occurred whilst the applicant was on bail in relation to the first case.  The alleged robbery took place just prior to noon on 9 February 2018 and involved a gang of South Asian men attacking four staff members of a money exchange company who were transporting to a bank two suitcases containing Japanese Yen, equivalent in value to $32.65 million Hong Kong dollars.  Three of the gang members were later intercepted by police at a roadblock in the vehicle that had been earlier used in the robbery.  The applicant is linked to one of the men apprehended through telephone calls made two weeks prior to the robbery and another call that was made soon after the robbery had been committed.  Mr Boyton takes issue in relation to this evidence and has produced call records to show that the telephone number in question was used after the applicant had been arrested.  Mr Cheung on the other hand relies on an application by the applicant for Autotoll made in December 2017 where he records the telephone number as his contact number. 

17.At this stage it is not for me to resolve any issue as to the evidence but rather make an overall assessment of the evidence in determining the strength of the case against the applicant.  This factor is but one of a number of factors that need to be taken into account when deciding whether or not to grant bail. 

18.The applicant had previously worked for the victim company and had been observed prior to the robbery monitoring the escort of monies by staff of the victim company to the bank.  Mr Boyton submits that the applicant worked as a driver for the solicitors firm in the area where the robbery took place so it would not be unusual for him to be seen there.  It would seem however that the manager’s evidence goes further and suggests that he was paying particular attention to them when they were escorting the money and he saw him doing this on two occasions between 22 January and 2 February 2018.

19.The offences that the applicant faces in the two cases are serious and the applicant upon conviction is likely to receive a substantial term of imprisonment for each, particularly for the second case which concerns the offence of robbery that is likely to be tried in the Court of First Instance.  Whilst the strength of the evidence against the applicant in relation to the second case is under challenge, there is nevertheless a case against him for this offence.  Mr Cheung also makes the point that inquiries are still being conducted in relation to the case.

20.I am not satisfied on the information and the circumstances before me that there is little motivation or limited capacity by the applicant to abscond.  In my view, his ties to Hong Kong are not strong, and not of a kind that would keep him in the jurisdiction, especially in light of his background and particular circumstances where he travels frequently to mainland China, and in recent times has lived abroad. 

21.He has two sets of allegations against him with the second case having taken place whilst he was on bail for the first case. There is an unacceptable risk that he is likely to commit further offences while on bail.  There is also in my view, an unacceptable risk that he is likely to interfere with witnesses, given his past connection with the victim company of the second case. 

22.For the foregoing reasons, I refuse the applicant’s application for bail and he is remanded in custody.

Subsequent applications

23.I remind the applicant of the terms of section 9G (11).  It provides that after an accused has been refused bail on a first re-application, the court shall hear any argument as to fact or law, but on a second or subsequent re-application the court need not hear any argument as to fact or law that it had previously heard.  In other words, there has to be a material change of circumstances for a new argument to be heard. 

Mr Bobby Cheung, SPP of Department of Justice, for HKSAR

Mr David Boyton and Ms Elizabeth Anne Herbert, instructed by Lai & Chaudhry, Solicitors LLP, for the applicant