The Judgment dated 28 December 2020 (“the Judgment”) should be amended as follows:
“24. In the circumstances, even assuming (subject to what we shall say below) that there could still be some kind of Quistclose trust, it could only be a trust subordinated to the legitimate power of the Court in disposing of the bail money, including the power under Order 49 Rule 9(1).
25. Though the argument of Quistclose trust in respect of money held in court had been accepted by Keith J in Goodpoint Holdings v Mark Anthony Seabrook [1997] HKLRD 869 and the English Court of Appeal in Common Professional Examination Board ex p Mealing-McCleod [2000] All ER (D) 588, in our judgment the better view is the one set out by the Chief Justice (as Ma CJHC, as he then was) in Registrar District Court v Li Kai [2006] 2 HKLRD 499 at [27], a judgment which is binding on us. We respectfully agree with these observations set out in that paragraph:
‘ Any payment made into court [for the purpose of bail] is, therefore, as far as the court is concerned, a payment made by the accused himself, regardless of who is actually providing him with the money and under what conditions. Neither the CPO nor any other Ordinance recognizes anyone other than the accused who is granted bail as being the person who has paid the cash bail … even though someone else might physically have paid the money into court.
Once money is paid into court as cash bail, that money is not held on trust by the court for the accused or anyone else. All that the accused possesses is the right to claim back the money providing it is not otherwise legitimately disposed of by the court. …any money paid into court become subject to the possibility of an appropriation order under s 73(3) and once an order is made, this will give priority to the victim over the interest of the convicted person (and his assigns).’
26. Ma CJHC was then concerned with the power of the court to make a compensation order under Section 73(3) of the Criminal Procedure Ordinance and we acknowledge that that provision is more specific on the use of bail money to satisfy compensation payable to a victim under a Section 73 order. However, we cannot see any reason why the analysis as to the nature of the bail money and the obligation of the court in relation to the bail money should vary when dealing with a situation under Order 49 Rule 9(1). The significance of such analysis is that the power of the court in the disposal of bail money is not to be fettered by constraints imposed by whatever arrangement between the person putting forward the cash bail and his financier (except perhaps in the context of a dispute between these two persons). The court does not hold the money on trust for any person and the person on bail only has a chose in action to seek the return of the bail money.
27. In this connection, there was no reference to Order 49 Rule 9(1) in Goodpoint Holdings v Mark Anthony Seabrook, supra or Common Professional Examination Board ex p Mealing-McCleod, supra. Insofar as these authorities suggested that the existence of a Quistclose trust as between a person seeking bail and his financial backer can be a fetter on the exercise of the court’s legitimate power to dispose of the bail money on account of Order 49 Rule 9(1), we respectfully disagree. We also respectfully disagree with the observations in Mealing-McCleod that the court provided no consideration for the money standing in court. That case concerns security for costs instead of bail money. In the context of bail money, if the sum was not paid, the person would not be released on bail.
28. In other words, whatever may be the arrangement between the immediate parties concerning the funding for bail money (viz if Quistclose trust exists and its effect when the court considers the return of the money to the person on bail), as long as the money is held by the court these parties only have a chose in action to seek the return of the money after the court has legitimately exercised its power over the sum as money of the person on bail. The subject matter of the Quistclose trust is the chose in action instead of the money and innate in that chose in action is the court’s legitimate power to dispose of the money (including the power under Order 49 Rule 9) other than returning the same to the person who answered bail.
29. Hence, as far as this Court is concerned, the bail money in the present case is money standing to the credit of the Respondent and the Petitioner, as judgment creditor, can properly seek an order under Order 49 Rule 9(1) in respect of the same.”