HKSAR v. Leung Wai Kit

CACC 292/2019

[2022] HKCA 552

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 292 OF 2019

(ON APPEAL FROM HCCC NO 124 OF 2019)

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Before:  Hon Zervos JA in Court

Date of Hearing: 20 April 2022

Date of Decision: 20 April 2022

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D E C I S I O N

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1.This is an application for bail pending appeal.

2.On 21 September 2021, the applicant was granted leave by Macrae VP to appeal his conviction of one count of trafficking in a dangerous drug, for which he was sentenced to 8 years’ imprisonment: HKSAR v Leung Wai Kit unreported, CACC 292/2019, 21 September 2021.  Leave was granted unopposed as it was accepted that it was reasonably arguable that the judge’s direction to the jury, namely the failure by the applicant to cross-examine a police witness in respect of an incident during the search of his home reflected on his credibility, exceeded proper bounds: HKSAR v Chan Hing Kai [2020] 1 HKLRD 1082.  However, the respondent maintained that the conviction should be upheld as there was no miscarriage of justice.

3.Bail pending appeal is an exceptional remedy after conviction which may be granted where it appears that the appeal has a strong likelihood of success (the “merits ground”), or where there is a likelihood that all or a substantial part of the sentence would be served before the disposal of the appeal (the “time ground”).  In considering the time ground, it must also be demonstrated that the appeal is at least reasonably arguable or promising.[1] In other words, the grounds of appeal are reasonably arguable in that they afford some real chance of success.[2] 

4.Mr Eric Cheung, who appears with Mr Simon Kwok, for the applicant, primarily relies on the time ground as the hearing of the appeal, fixed for 30 March 2022, had to be vacated and re-fixed for 25 August 2022 because it fell within the General Adjournment Period that was imposed in accordance with the public health restrictions arising from the coronavirus pandemic.  He points out that the applicant has been in custody since his arrest on 25 February 2018 and his earliest release date is 23 June 2023. Accordingly, by the time the appeal is to be heard, the applicant would have served a substantial part of his sentence, namely 54 months of a sentence of 64 months after taking into account the one third remission for good conduct.

5.Mr Cheung also points out that the applicant has a high prospect of success in his appeal in respect of the impugned direction of the judge because the judge clearly exceeded proper bounds when he directed the jury to embark on an impermissible line of reasoning to assess the applicant’s credibility because of the lack of puttage.  He notes that there are cogent similarities between the present case and Chan Hing Kai where the Court of Appeal refused to invoke the proviso and ordered a retrial.

6.Ms Hermina Ng, for the respondent, very properly does not oppose the application for bail pending appeal by the applicant on the time ground.  She accepts that the applicant has a reasonably arguable case on appeal and there is a real likelihood that he would have served a substantial part of the sentence of imprisonment by the time the appeal is heard: HKSAR v Ko Wai Shing unreported, CACC 7/2020, 30 March 2021, at [3].

7.I am satisfied that the applicant should be granted bail pending appeal subject to appropriate terms and conditions that I will discuss with the parties.

Ms Hermina Ng, SADPP (Ag) of Department of Justice, for the respondent

Mr Eric Cheung, Solicitor Advocate, and Mr Simon Kwok, instructed by ONC Lawyers, assigned by the Director of Legal Aid, for the applicant

[1]  HKSAR v Fong King-choi, unrep., CACC 319/2018, 2 May 2019, at [3]-[6].

[2]  HKSAR v Chung Ho Yin, unrep., CACC 75/2020, 17 September 2021, at [39] and [40].