HKSAR v. Chung Siu Tai

CACC 320/2017

[2018] HKCA 251

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 320 OF 2017

(ON APPEAL FROM DCCC NO 1208 OF 1994)

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Before: Hon Poon JA in Court

Date of Hearing: 27 April 2018

Date of Judgment: 27 April 2018

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J U D G M E N T

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Hon Poon JA (giving the Judgment of the Court) :

1.This is the applicant’s application for bail pending his application for leave to appeal against conviction out of time.

BACKGROUND

2.The applicant was the first defendant in DCCC 1208/1994.  He and two co-defendants were jointly charged with two counts of wounding with intent, contrary to section 17 of the Offences Against the Person Ordinance, Cap 212.  They all pleaded not guilty to the charges, and were tried before Her Honour Judge Chua in the District Court on 26 September 1995.  They were granted bail during the course of the trial.

3.After trial the judge convicted all three defendants of both charges.  On 3 October 1995, that is, one day before the date fixed for sentence, the applicant left Hong Kong for Thailand via Kai Tak International Airport.  He did not return to Hong Kong to attend the sentence hearing on the following day.  As he had absconded, he had been wanted by the police since then.

4.At the sentence hearing, all the defendants were sentenced by the judge to imprisonment of 2 and ½ years’ imprisonment on each charge.  The sentences were ordered to run concurrently, resulting in a total of 2 and ½ years’ imprisonment.

5.On 5 June 2017, the applicant tried to enter Japan via Fukuoka Airport from Mainland China.  He used a PRC passport containing particulars different from those of his as recorded in the Hong Kong Immigration Department.  During the immigration clearance, the Japanese authorities found out from his fingerprints that he was a wanted person in Hong Kong and had been put on the Interpol Red Notice System for extradition.  The applicant was subsequently sent back to Hong Kong from Japan on 6 June 2017 whereupon he was re-arrested by the police at Hong Kong International Airport.

PARTIES’ STANCE

6.Mr Yuen, for the applicant, relies on the “merits” ground only in support of his bail application.  He argues that there are exceptionally strong grounds of appeal.  The thrust of his arguments is that the prosecution case against the applicant heavily depended on the identification evidence of PW3, which was poor.  The judge, however, had failed to show that she had been mindful of the inherent danger in relying on PW3’s evidence along the Turnbull guidelines, rendering the applicant’s conviction unsafe and unsatisfactory.

7.Mr Man, for the respondent, opposes the application.  He takes two points.

8.First, he argues that given the history of this case, the risk of the applicant absconding, if bail were granted, is high.  This is sufficient to justify the refusal of his bail application.

9.Second, on the “merits” ground, Mr Man argues that there has been a substantial and inordinate delay in the applicant’s application for leave to appeal against conviction out of time.  He has to show exceptionally strong grounds of appeal before an extension of time to appeal is to be granted.  But he has not done so as there is no merits in all the grounds of appeal.

MY VIEW

10.Mr Yuen fairly accepts that in the present context because of the substantial and self-inflicted delay, the grounds of appeal must be exceptionally strong before bail can be granted to the applicant pending his application for leave to appeal against conviction out of time.

11.I have considered the grounds of appeal.  I will say no more on their merits or the parties’ submissions in this regard than what is necessary to dispose of the present bail application as the matter will be heard by the Court of Appeal in due course.  I do not find the grounds of appeal exceptionally strong as contended by Mr Yuen.  In consequence, there is no proper basis for the “merits” ground to stand on.

12.Further, I agree with Mr Man that the risk of the applicant absconding, if bail were granted, is real and imminent.  He jumped bail before sentence.  After he left Hong Kong for Thailand on 3 October 1995, he had since remained a fugitive of justice for almost 22 years.  When he entered Japan on 8 June 2017, he used a PRC passport which did not bear his particulars as registered in Hong Kong.  This indicates that the applicant has access to means to enable him to travel under a different identity.  It also means that the requirement of directing him to surrender all travel documents as a bail condition is quite meaningless.  And finally, contrary to what he should have done in order to alleviate the legitimate concern that the court has concerning the risk of absconding if bail were granted, the applicant has not said a single word about why he absconded in 1995, how he was able to obtain the PRC passport which did not bear his particulars as registered in Hong Kong and why he chose to travel on that passport.

CONCLUSION

13.For the above reasons, I refuse the applicant’s bail application.

Mr Bernard Yuen, instructed by Johnnie Yam, Jacky Lee & Co., assigned by Director of Legal Aid, for the Applicant

Mr Man Tak-ho, Jonathan, SADPP of Department of Justice, for the Respondent