Read the full judgment text of on BabelCite. was delivered on 7 October 1993 before Bokhary JA.
Criminal procedure – bail pending appeal – test for granting bail – section 83R of the Criminal Procedure Ordinance, Cap 221 – Prevention of Bribery Ordinance, Cap 201, s.4(1)(a) – offering advantage to public servant – maximum sentence of seven years' imprisonment – applicant a banker in his early fifties, married with three children, lived in Hong Kong since 1974, of previous good character – convicted on 2 June 1992 in the High Court on one count – sentenced the following day to seven years' imprisonment – offence involved a bribe paid to a very senior lawyer in the Attorney General's Chambers – co-accused Mr Lai (solicitor) convicted on five corruption counts and Mr Soh (counsel) convicted on seven counts, each receiving concurrent maximum sentences of seven years – appeal against conviction and sentence – first bail application dismissed by Chief Justice on 14 August 1992 – second application after change in circumstances, namely that the appeal would take much longer to come on for hearing than anticipated – whether the proper test for granting bail pending appeal should follow the Watton formulation that bail is granted only where the appeal appears prima facie likely to succeed or where there is a risk the sentence will have been served by the time the appeal is heard – held yes, court adopted formulation in R v Watton – discretion under s.83R is unfettered and no warrant for any more restrictive general approach – whether the earlier R v Tam Chung-wah formulation (need to show high chances of appeal success and substantial injustice) is reconcilable with the later R v Tam Chung-sing 'time' basis approach – held the two are not contradictory – the 'time' basis arises in cases where appellants assert but cannot practicably demonstrate that their appeals are highly likely to succeed, and the practice has developed accordingly – court takes practical approach – percentages of sentence served pending appeal not the be-all and end-all – absolute time matters more than percentage – a 90% wait of nine months is not more serious than an 80% wait of eight years – whether the applicant should be admitted to bail on the 'time' basis and the promise of his sentence appeal – held yes – appeal against sentence described as 'promising' because applicant received the maximum seven-year sentence while co-accused Mr Lai and Mr Soh received maximum sentences ordered to be served concurrently, raising a potential disparity argument – Crown seeking to review Mr Lai's sentence – though applicant unlike Mr Lai had not spent 15 months in custody pre-trial, the promise of the sentence appeal cancelled this difference out – second bail application allowed – applicant admitted to bail in the sum of HK$500,000 cash deposit, one surety in like amount to be approved by the Registrar, surrender of travel documents to the court, and an undertaking not to leave Hong Kong – no reporting condition imposed
Legal issues: Test for granting bail pending appeal · Whether to grant bail pending appeal to the applicant
Outcome: Application for bail pending appeal allowed; applicant admitted to bail.