Re Johnny Mondesir

HCAL 2071/2019

[2019] HKCFI 2103

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2071 OF 2019

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Before: Hon G Lam J in Court

Date of Hearing: 24 July 2019

Date of Decision: 24 July 2019

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D E C I S I O N

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1.I have before me an application by the applicant, Mr Johnny Mondesir, filed on 17 July 2019 pursuant to Order 54 rule 1 of the Rules of the High Court, for the issue of a writ of habeas corpus ad subjiciendum.

2.It is a matter of concern that although the application was filed in the late afternoon of 17 July, it did not reach a judge, in this case myself, until around noon yesterday.  In response I called for an urgent hearing of the application this morning, at which the applicant is present and Mr Louie Chan of the Department of Justice has appeared at short notice.

3.The applicant was apprehended upon arrival in Hong Kong in April 2019 and subsequently charged with two charges under section 25 of the Organized and Serious Crimes Ordinance (Cap 455) for offences connected with dealing with the proceeds of an indictable offence.

4.According to the statement written by the applicant and dated 12 July, he wishes to apply for a writ of habeas corpus on the ground that his detention is unjustified because, he says, there is insufficient evidence to prove that he knew, or had reasonable grounds to believe, that the money he received constituted proceeds of an indictable offence.  He also considers that his detention has greatly hindered his ability to provide proof of the legitimate source of the funds concerned.  He says he has evidence to support that he believed the funds to have come from a legitimate source.

5.In fact, as the applicant accepted this morning, he was brought before a magistrate on the day after his initial arrest and, as Mr Chan has indicated to the court, the applicant had initially applied for bail before the magistrate, which was refused, but a renewed application was withdrawn.  No bail applications were made on the second and third appearances in the magistracy.

6.It does not appear that any bail application has been made to the District Court, to which the case has been transferred, for bail.  Instead, the record shows that the court has ordered the applicant to be remanded in jail custody.

7.It is quite clear to me on this basis that the applicant has been refused bail, pursuant to section 9G of the Criminal Procedure Ordinance (Cap 221 of the Laws of Hong Kong), and that his current detention is based on orders of the court, so that there is no basis for saying that the detention is without lawful authority.

8.Mr Chan has also informed the court that the criminal proceedings have meanwhile progressed to a stage where there is now a pre-trial review fixed in December 2019 and a 10-day trial fixed to commence on 7 January 2020.  In these circumstances, it seems to me there is no basis for the application for the issue of a writ of habeas corpus.

9.As A Cheung J, as he then was, held in the case of Michael K Ogunade (unrep, HCAL 20/2005, 8 February 2005), the proper procedure in these circumstances for the applicant to try to secure his release whilst awaiting a criminal trial is an application for bail, where, if appropriate, the court hearing the application can entertain arguments on all relevant factors, including potentially the merits of the case he is facing and the needs of the defence.

10.For the purpose of the application for a writ of habeas corpus, however, the strength of the prosecution and defence cases respectively and the needs of the defence in preparation for the criminal case, are not matters relevant to the legality of the detention.  For these reasons, the application today must be dismissed.

(Discussion re costs)

11.There will be no order as to costs.

The applicant appeared in person

Mr Louie Chan of the Department of Justice, for the putative respondent