HKSAR v. Chan Fuk Yu

HCMA 34/2024

[2024] HKCFI 1376

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 34 OF 2024

(ON APPEAL FROM KTCC 577 OF 2022)

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BETWEEN

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J U D G M E N T

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1.The applicant was convicted of one count of “Evasion of liability by deception” after trial on 21 December 2023 and was sentenced to 22 months’ imprisonment. The applicant lodged her appeal against conviction and sentence.

2.On 9 February 2024, I refused the applicant’s bail pending appeal (the ‘Decision’).

3.The applicant now applies for a certificate that “a point of law of great and general importance was ANTERIOR TO the making of [the Decision], pursuant to section 32(2)  of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 (‘CFAO’)”.

The Two Points of Law of Great and General Importance as per the Amended Notice of Motion dated 7 March 2024

4.The applicant submits that there are two points of law of great and general importance:

Question (1):  When considering the strength of the appeal in deciding an application for bail pending appeal, was it correct for a court to only allow bail when the applicant can show that the appeal is “extremely highly likely” to be successful, or when, as stated in R v Walton (1979)  68 Cr App R, prima facie likely to be successful?

Question (2):  When deciding an application for bail pending appeal, was a court entitled not to give any reasons?

The position of the respondent

5.The respondent opposes the applicant’s application for certification.

6.The trial and the bail application were conducted in Chinese.  The Skeleton Submissions of the applicant are in English.  The respondent filed a Skeleton Submissions in Chinese on 9 April 2024.  At the request of this court, the respondent field an English version of the Skeleton Submissions on 17 May 2024.

Discussion

7.Section 31(b)  of CFAO provides:

“An appeal shall, at the discretion of the Court, lie to the Court in any criminal cause or matter, at the instance of any party to the proceedings, from-

(a)  …

(b)  any final decision of the Court of First Instance (not being a verdict or finding of a jury)  from which no appeal lies to the Court of Appeal.” (Emphasis added)

8.A decision of the Court of First Instance to refuse or grant bail is not a final decision of on the question of bail.  In Pasa Danaville Dizon v HKSAR (2009)  12 HKCFAR 960, the Court of Final Appeal decided that decision to refuse or grant bail is not a final decision because it can be revoked, and the decision to refuse bail can be reopened on new circumstances being shown.

9.In HKSAR v Mak Wan Ling (2019)  HKCFAR 51, the Court of Final Appeal considered what is a final judgment for the purpose of section 31 of the HKCFAO, Fok PJ said:

“12. In construing what is a final judgment in s.31 of the HKCFAO, it is appropriate to apply the approach adopted in Shell Hong Kong Ltd v Yeung Wai Man Kiu Yip Co Ltd, which was a decision on whether a decision under O. 14A of the Rules of the High Court is a final or interlocutory order. On the ‘application approach’ applied in that case, a decision may be final ‘even if it does not finally determine the whole action’. There, the Court of Final Appeal considered ‘the purpose and substance of the application, the issue dealt with and determined by the court and the effect of a determination of this issue on the rights of the parties, the further conduct of the proceedings and the final disposal of the whole action,’ It held that a broad common-sense approach should be adopted and that if the issue dealt with and determined by the court is a ‘substantive part of the final trial’ or a ‘crucial issue’ in the case or a point ‘that goes to the root of the case’ or a ‘dominant feature of the case’, then the order or judgment, even if it did not finally dispose of the whole action, should nevertheless be regarded as a final judgment.” (Emphasis added)

10.Applying the principles of Pasa Danaville Dizon and Mak Wan Ling to this application, it is obvious that the Decision that this court made was not a final decision.  That being the case, pursuant to section 31(b)  of the CFAO, the Decision is not appealable to the Court of Final Appeal.

11.In HKSAR v Lai Chee Ying [2020] HKCFA 45 and HKSAR v Ng Hau Yi Sidney (2021)  24 HKCFAR 417, the CFA considered under what circumstances a question of law anterior to the decision on the granting or refusal of bail would be considered as a ‘final decision’.

12.The CFA held that if the question sought to be certified does not involve an appeal against a decision to grant or refuse bail after assessing the associated risks but rather, it involves a decision on a question of law anterior to considerations of associated risks to grant or refuse bail, then the decision was not subject to being reopened and was a final decision in the sense explained in Mak Wan Ling.

13.In the present case, although the applicant states in the Amended Notice of Motion dated 7 March 2024 that the applicant applies for a certificate that ‘a point of law of great and general importance was ANTERIOR TO the making of the Decision’, the applicant fails to explain how the two Questions are points of law ‘anterior to’ the Decision.  During the hearing of the bail pending appeal application, the focus of the parties was on the ‘Meris Basis’ and the findings of the trial magistrate.  The focus of the hearing was not on the legal principles involved for bail pending appeal on ‘Time Basis’.  This court did not hear any arguments or made any determination in relation to the matter sought to be certified under Question (1).

14.In my judgment, it cannot be reasonably be argued that Question (2)  is a question anterior to the Decision.

15.Both Question (1)  and (2)  do not satisfy the requirement under section 3 of the CFAO.

Consideration of Question (1)  on its Merits

16.In any event, I do not consider Question (1)  involves points of law of great and general importance.

17.There are a pool of authorities on the ‘Merit Basis’ and the ‘Time Basis’.  At the hearing, the applicant indicated that the applicant would not rely on the ‘Time Basis’, the focus of the hearing was on the ‘Merit Basis’ as argued by the parties.  The expression used in the Decision was ‘極高的成功機會’.

18.In the cases 香港特別行政區 對 吳森雄 [2021] HKCA 1525 (paragraph 3 of the decision)  and 香港特別行政區 對 黃木水 [2018] HKCA 68 (paragraph 3 of the decision), when the Court of Appeal used the same Chinese expression ‘極高的成功機會’, the Court of Appeal cited the case HKSAR v Lau Man Kin [2010] 1 HKLRD 336 in which the Court of Appeal held that bail pending appeal is granted only in exceptional circumstances and clearly at the discretion of the court.

19.Similarly, the expression used ‘極高的成功機會’ was used in 香港特別行政區 對 官心陽(Kwun Sum Yeung)  [2020] HKCA 515 (paragraph 4 of the decision)  and香港特別行政區 對 周庭 [2020] HKCFI 3089 (paragraph 16 of the decision).

20.For cases heard in English, expressions like “strong prospect of success”, “highly likely to succeed”, “strong likelihood of success” had been used to reflect the prospect of success that an applicant has to show in relation to the “merits ground”.

21.It is clear from decided cases that there is no divergent views on the principles to be applied for bail pending appeal.

22.The respondent is right to submit that as Zervos J (as he then was)  said in HKSAR v Mohomed Rahoof Mohomed Sajahan HCMA 270/2014 (Unreported, 4 July 2014)):

“2. … [T]he phrases ‘strong prospect of success’, ‘highly likely to succeed’ or ‘strong likelihood of success’ provides the threshold that needs to be satisfied in order to consider granting bail to an applicant. I prefer the phrase ‘strong likelihood of success’ but in my view all these phrases seek to impose on an applicant a high threshold which is satisfied by showing that the appeal has a very good chance of success.” (Emphasis added)

23.The observation made by Hon Zervos J (as he then was)  applies equally to cases heard in Chinese in which the expression ‘極高的成功機會’ was used.

24.The legal principles governing the handling of bail pending appeal are clear and settled.

25.For bail pending appeal under the ‘Merit Basis’, though the prospect of appeal that has to be shown by an applicant could be expressed in many ways, in deciding whether to grant bail pending appeal, the true question is, are there exceptional circumstances, which would drive the court to the conclusion that justice can only be done by granting of bail?  (HKSAR v Chan Man Chung CACC 87/2000 (Unreported, 26 July 2000)).

26.For the reasons given, Question (1)  does not involve any point of law of great and general importance and is not reasonably arguable.

Consideration of Question (2)  on its Merits

27.In HKSAR v Kevin Egan (2010)  13 HKCFAR 314, the Court of Final Appeal said that the adequacy of reasons depends on the circumstances of each case.  Given the very nature of a bail pending appeal against conviction where many issues are at large, as in the present case, it was not in the interest of justice for this court to delve into details in relation to the merits of the grounds of appeal when making a decision on an application for bail pending appeal.  For the bail application on 9 February 2024, reasons were given (p. 10, lines G-M of the transcripts).

28.For the reasons given, Question (2)  is not a point of law of great and general importance and is not reasonably arguable.

Conclusion

29.The applicant’s application is dismissed for the reasons given.

Mr Charles Lee, SPP and Ms Annabelle Chan, SPP (Ag)  of the Department of Justice, for the respondent

Mr Simon So and Mr Hui Chi-ho, instructed by Kingston Tong & Co, for the applicant