The Queen v. Chu Kwok Wah

HCMP002006/1989

MP No. 2006 of 1989

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H E A D N O T E

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Bail - successful second application in changed circumstances - principles governing the grant of bail

The applicant (who had been arrested on July 20, 1989, for conspiring to forge bank-notes) had been refused bail by the High Court on September 5, 1989. At that time, it was expected that the committal proceedings would commence on December 15, 1989. On that basis, it was expected that the trial would commence in June 1990.

However, on December 15, 1989, the committal proceedings were put back to the end of April 1990.

The applicant then promptly made a fresh application to the High Court for bail. He relied on the change of circumstances constituted by the putting back of the committal proceedings.

At the hearing of the fresh application, counsel for the Crown - who opposed bail - found it very difficult to say when the trial would commence. The Court was left with the impression that everybody would consider themselves very lucky if it commenced in September 1990.

HELD :-

(1) The changed circumstances made it proper that the matter be looked at afresh. So looking at it, the time had come when the applicant could no longer be denied bail. He was granted bail in the sum of $250,000.00 in cash, with one surety to be approved by the clerk of the Court in the sum of $500,000.00, on conditions in regard to the surrender of travel documents and reporting to the Police daily, and on his undertaking not to contact a specified class of persons save on written notice from his solicitors to the police.

(2) The Court stated the following principles :

(i) "First, a very important - and possibly the most important - factor to be borne in mind in regard to the question of bail is the length of time which a man presumed to be innocent will be kept in custody before his trial if he is not granted bail."

(ii) "Secondly the court has the right-and indeed the duty - to reconsider the question of bail when it has been resurrected upon a change of circumstances."

IN THE SUPREME COURT OF HONG KONG

(Criminal Jurisdiction)

MISCELLANEOUS PROCEEDINGS NO. 2006 of 1989

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Between :

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Coram: Bokhary, J. in Chambers

Date of hearing: December 22, 1989

Date of delivery of judgment: December 22, 1989

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J U D G M E N T

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1. This is an application for bail made on behalf of Mr Chu Kwok-wah, one of a number of persons facing a charge of conspiracy to forge bank-notes.

2. This is not the first occasion on which the applicant has appeared before me. He first appeared before me on September 5, 1989, when his application for bail was refused. At that time, it was expected that the committal proceedings would commence on December 15, 1989. On that basis, it was expected that the trial would commence in June 1990. Now the 15th of this month has come and gone; and the only thing that happened on that day was that the committal proceedings were put back to the end of April 1990.

3. When will the trial itself commence? Mr. Power, who appears on behalf of the Crown, informs me that it is very difficult to say. The impression I get is that everybody would consider themselves very lucky if it commenced in September 1990.

4. The applicant has been in custody since July 20, 1989. Now that the time-table has altered in the radical way which I have indicated, Mr. Sanguinetti, who did not appear on the previous occasion but appears for the applicant now, submits that there is such a change of circumstances as justifies my looking at the matter afresh and - doing so - granting bail. He has brought the force of his great learning in these matters to bear on what I have to decide; and a number of authorities have been drawn to my attention as a result. From these authorities, Mr Sanguinetti has extracted certain principles which Mr Power for the Crown, rightly in my judgment, feels unable to challenge.

5. In short, the relevant principles here are these: First, a very important - and possibly the most important factor to be borne in mind in regard to the question of bail is the length of time which a man presumed to be innocent will be kept in custody before his trial if he is not granted bail. Now, the period in the present case on the time-table to which I have adverted would be very considerable.

6. Secondly, the court always has the right and indeed the duty - to reconsider the question of bail when it has been resurrected upon a change of circumstances.

7. In the changed circumstances here, I regard it as proper that this matter should be looked at afresh. Looking at it afresh, I think - despite the points made by Mr. Power in opposing bail - that the time has come when the applicant can no longer be denied bail.

8. The conditions on which bail should be granted have been the subject of a practical and reasonable exchange between counsel. And the net result, as I understand it, is that if bail is granted - and I do grant it - the following conditions would strike all concerned as reasonable and probably the best that can be devised in the circumstances : Bail will be granted in the sum of $250,000.00 in cash and with one surety to be approved by the Clerk of Court in the sum of $500,000.00. I should indicate that I specify the Clerk of the Court rather than the Registrar because I understand from those dealing with these matters administratively that such is the more convenient course to adopt having regard to the pressures which exist on the Registrar's time. For the avoidance of doubt, I feel that I should say that the surety does not have to produce the money at this stage. The sum of $500,000.00 is what the surety is liable to pay if the applicant does not surrender to the bail which I now grant.

9. Continuing with the conditions, the remaining ones are these: The applicant must surrender to the Court all such travel documents of his as may now be in his possession. It may well be that he has none in his possession because they are all with the police. If that is the case, there is nothing for him to surrender to the court under this condition, and nothing need be done thereunder. As far as reporting conditions are concerned, the applicant must report to the police at Wanchai Police Station once a day between 9 a.m. and 9 p.m., 7 days a week. As a condition of bail, the applicant is prepared to give - and I extract from him - an undertaking that he will not contact any person employed, or formerly employed, by him in regard to the business which he carries, or carried, on under the style of "Ad maker" save on 4 clear days' notice in writing from his solicitors to the Organised and Serious Crimes Bureau at Police Headquarters.

10. This appears to me to conclude the matter save for the indebtedness which I must express to counsel on both sides for their assistance, which indebtedness I now express.

Representation:

P.J. Power, Senior Crown Counsel, for the Crown

A.J.J. Sanguinetti and R. Sujanani (instructed by Helen A. Lo & Co.) for the Applicant