HKSAR v. Liu Tsz Man

[ENGLISH TRANSLATION – 英譯本]

CACC 115/2022

[2022] HKCA 1765

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 115 OF 2022

(ON APPEAL FROM DCCC NO 323 OF 2020)

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Reasons for Decision

1.This is the second bail application made by the applicant. In his first application, the applicant acted in person and his application was refused. In the present application, counsel retained at the applicant’s own cost put forward more specific grounds of the application on his behalf.

Background of this case

2.The background of this case can be seen from my decision on the first bail application: HKSAR v. Liu Tsz Man [2022] HKCA 1397.

Position of the applicant

3.The applicant filed the skeleton submission on the bail application and the supplementary skeleton submission on 4 November and 22 November 2022 respectively and the main points are as follows:

(1)  The judge’s postscripts reflected his intention, that is, the total sentence of DCCC 570/2021 and DCCC 323/2020 should be no more than 31 months. According to HKSAR v Lau Hing Fai CACC 43/2017 (paras 41 and 46), the Court of Appeal had no reason to interfere with that intention in sentencing.

(2)  When calculating the earliest date of discharge, the Court of Appeal should also use the method of calculation adopted in HKSAR v Jin Bin [2019] HKCA 1240. According to that method of calculation, the applicant’s earliest date of discharge would be 20 September 2022 and, after deducting the four days spent in custody in 2019, it should be 16 September 2022.

(3)  The abovementioned calculation is based on the assumption that the applicant would benefit from rule 69(1) of the Prison Rules in both DCCC 570/2021 and DCCC 323/2020, namely a one-third remission would be granted to him for good behaviour. For the relevant case law, see HKSAR v Cheung Lai Sing Dickson CACC 137/2003.

Reply by the respondent

4.In relation to the two bail applications, the respondent has filed a total of three sets of skeleton submission and/or supplementary skeleton submission. The main points are as follows:

(1)  According to the calculation made by the Correctional Services Department based on the current term of 27 months, the applicant’s earliest date of discharge will be 28 April 2023. Even if the sentence was to be reduced to 21 months according to the intention of the judge and assuming the applicant would enjoy a full one-third remission under rule 69(1) of the Prison Rules in DCCC 323/2020, his earliest date of discharge would only be 27 December 2022.

(2)  In Fu Man Kit v Superintendent of Tai Lam Correctional Institution [2022] 1 HKLRD 219, the Court of Appeal gave a ruling on the proper construction of rule 69(1) of the Prison Rules, which shows that it is inapplicable to situations like those of DCCC 570/2021. Jin Bin, Cheung Lai Sing Dickson and Lau Hing Fai could be distinguished immediately on their specific circumstances.

(3)  However, considering that the Court of Appeal may, in the end, reduce the sentence according to the judge’s intention such that the applicant can be discharged on 27 December 2022 at the earliest, the respondent does not oppose that, subject to appropriate conditions, the applicant be granted bail pending appeal.

Discussion

5.I do not consider rule 69(1) of the Prison Rules to be applicable to DCCC 570/2021. My reasons were briefly given at the hearing. Nevertheless, based on the precedents, there is a real possibility that the Court of Appeal may re-sentence the applicant according to the judge’s intention. If the sentence was passed in time, the applicant could have been discharged around a month later, on 27 December 2022 at the earliest. That is to say, he would most probably be discharged before a date for the hearing of the appeal is formally fixed. Therefore, no matter what the real effects of rule 69(1) of the Prison Rules are on DCCC 570/2021, the applicant should be granted bail pending appeal.

Decision

6.I allow the applicant’s bail application on the conditions pronounced at the hearing.

Ms Catherine K.K. Wong and Mr Jay C.H. Koon, instructed by O Tse & Co., for the applicant.

Mr Lo Tin Wai, Andy, Acting Assistant Director of Public Prosecutions of the Department of Justice, for the respondent.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Ms. Jenny Chung, Solicitor.