HKSAR v. Chan Sze Chun

CACC 171 /2023

[2025] HKCA 1007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 171 OF 2023

(ON APPEAL FROM HCCC NO 50 OF 2023)

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BETWEEN

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D E C I S I O N

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1.On 22 September 2022, the applicant was granted leave to appeal against conviction only, on two grounds of appeal. He now applies for bail pending his appeal, which has been set down for hearing before the full Court of Appeal on 19 May 2026.

2.The test for the grant of leave to appeal against conviction by a Single Judge is that there are reasonably arguable grounds of appeal.  The test for the grant of bail pending appeal is whether there is a strong likelihood or prospect of success (the “merits factor”)  and/or whether there is a likelihood that all, or a substantial part, of the applicant’s sentence will be served before the disposal of the appeal (the “time factor”).  However, the time factor does not absolve the court from making an assessment of the merits “for if there is no merit in an application for bail, there is no point in considering the question of time”: see HKSAR v Lam Kit Wai[1].

3.The two tests are quite different.  The threshold for the grant of leave to appeal by a Single Judge is plainly lower than the test for the grant of bail pending appeal.  The former is a more quantitive test, which simply assesses the sufficiency of the ground of appeal put forward and whether it is reasonably arguable so as to warrant further consideration by the full Court of Appeal: the test is not concerned with the strength of the appeal, or the likelihood of it ultimately succeeding.  By contrast, the latter is a more qualitative test, which considers the merits and strength of the appeal and how likely it is to succeed: it has been termed by Zervos JA as “an exceptional remedy after conviction”[2].

4.I do not propose to go into any further analysis of the matters set out in my judgment, which already runs to 23 pages.  At [48]-[52] of the judgment, I explained the reasons for finding the two matters reasonably arguable but I also raised various evidential and legal issues, which will have to be addressed by the applicant or his counsel at the appeal proper before the full Court.  Suffice it to say, whilst I regard the grounds referred to as reasonably arguable, and having considered the further arguments adduced by the applicant today as well as the authority of HKSAR v Ma Kin Yiu[3] on which he relies, I am not prepared at this stage to find that they have a strong likelihood or prospect of success.  The facts in Ma Kin Yiu seem to have been wholly different and involved a long history over several years of consensual sexual activity between two adults, which included sadomasochism and anal intercourse.  Therefore, the Court found it was a case warranting a genuine but mistaken belief direction, particularly since the jury’s own question had appeared to raise the issue.  Unfortunately, they did not get proper assistance from the trial judge on the matter, and the appeal was consequently allowed.

5.Nor is there any question of the applicant having served a substantial part of his sentence by the time the appeal comes on for hearing in May next year.

6.The application for bail pending appeal must accordingly be refused.

Mr Antony Leung SPP, of the Department of Justice, for the Respondent

The Applicant appeared in person