HKSAR v. Wong Shiu Yee

CACC000286A/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 286 OF 2000

(On Appeal from DCCC No.283 of 2000)

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Coram: Hon Woo JA in Chambers

Date of Hearing: 10 November 2000

Date of Judgment: 10 November 2000

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JUDGMENT

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1. This is the second application for bail pending appeal against conviction. The first application was made on 17 July 2000 and was heard and rejected by me on 11 August 2000. In the judgment I gave on 11 August, I had set out the applicable law and reviewed the circumstances. I do not think it necessary to repeat myself.

2. From the material put before me today, there seems to have been development in two aspects that need be considered, namely, there is evidence to show that the defendant/applicant will have completely served his 14 months' imprisonment sentence, subject to good behaviour, at the beginning of April 2001 and that a senior counsel has advised that he has good grounds of appeal against conviction.

3. The first development is relevant to my consideration under section 83Z(b) of the Criminal Procedure Ordinance, Cap.221 as to the likelihood of a sentence being completed before the disposal of the appeal. The evidence to show that the applicant will be discharged from jail on 3 April 2001 is, I think, intended to show that the application for leave to appeal, having not been fixed to be heard even today, there is a likelihood that the sentence would have been completed before the disposal of the appeal. Indeed, in my judgment of 11 August, this matter was considered though the exact date of his discharge was not known then.

4. At the hearing on 11 August, Mr McNamara, who acted for the applicant, informed me that it was necessary to obtain the transcript of four to five witnesses' evidence for the purpose of the appeal and that the time required for doing so would be a couple of months. I said that since the required transcript could be made available in about two months, a hearing date for the application for leave to appeal could be fixed either in late October or early November; that hearing date being available was based on the confirmation from the listing clerk. I therefore opined that section 83Z(b) became irrelevant.

5. Miss Fung, for the respondent, points out that if the transcript is so important for the appeal, the applicant should have made application for it as soon as possible, at least shortly after 11 August when I dismissed the first application for bail. The fact is that it was not until 23 October 2000 that an application was made to the court for the transcript. It would not be proper for the court to take into consideration the likelihood of the sentence being completed before the disposal of appeal where the delay in the prosecution of the appeal creating that likelihood is caused by the applicant himself.

6. Mr Macrae SC explains that the practice is that no application for the transcript will be made, or will be allowed, until the filing of the perfected grounds. There was a change of counsel from Mr McNamara to Mr Macrae and Mr Macrae was out of Hong Kong until some time in September. There was an application for extension of time to file the perfected grounds and leave was granted for the late filing of the perfected grounds, which was done on 19 October. Therefore, the 23 October application for the transcript was not a delay that could be attributable to the fault of the applicant.

7. The second point raised is the chances of success of the appeal. I had in my 11 August judgment dealt with the initial grounds of appeal against conviction that was erroneously dated 7 June 2000 and came to the conclusion that I was not impressed by the grounds as demonstrating a prima facie likelihood of success. The perfected grounds dated 19 October 2000 settled by Mr Macrae raise basically the same grounds as those initial grounds except Ground 3, albeit with much lucidity.

8. The applicant was convicted of eight charges, namely, Charges 1,2,3,4,6,8,12 and 14 and acquitted of Charges 5,7,9,10 and 13, while no evidence was offered on Charge 11. He was sentenced to imprisonment for 14 months for each of the charges, all to run concurrently. While as now presented, the ground against the convictions on Charges 4, 6,8 and 12 appears to me to be stronger and seriously arguable, I remain of the same view regarding the other convicted charges. That ground alone, even if successful, is unable to result in a substantial reduction of sentence because it is abundantly clear from the facts found by the trial judge that these four charges were the least serious amongst all.

9. If a hearing date can be fixed some time in January 2001, the question of whether the applicant would have completed his sentence pending the disposal of that appeal would not arise. In the circumstances, I am not persuaded that there are exceptional circumstances in this case that would lead me to the conclusion that justice can only be done by the granting of bail.

10. In the result, the application is refused.

Representation:

Miss Catherine Fung, SGC of Department of Justice, for HKSAR

Mr Andrew Macrae, SC, instructed by Messrs Yuen & Partners, for the Applicant