Tam Chun-wah v. The Queen

HCMP000539/1976

IN THE HIGH COURT OF HONG KONG

CRIMINAL JURISDICTION

MISCELLANEOUS PROCEEDINGS NO.539 OF 1976

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Coram: Cons, J. in Chambers.

Date of Judgment: 1st October, 1976.

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JUDGMENT

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This was an application for the grant of bail pending appeal from the decision of a magistrate. The particular facts are not relevant. It is sufficient to say that the application was withdrawn after the proceedings had been adjourned to enable the application to be properly pursued.

I regret that this is not the first occasion when an adjournment for this purpose has been necessary. During recent months I have been presented with several applications which have been too hastily or poorly prepared. I have commented each time to those responsible but the comments do not appear to have effected any general change. I therefore take this opportunity to publish those comments more widely and hope that they may assist those who are asked to advise convicted persons in this respect. There may of course be exceptional circumstances to which they will not apply.

(1)Application for bail pending appeal should be made in the first instance to the trial magistrate under section 119 of the Magistrates Ordinance. This has the advantage of speed and economy. The application may be made informally and no supporting affidavit is necessary for the magistrate will already be aware of the relevant matters. It has been suggested that a magistrate is unlikely to give a fair hearing to such an application which by its very nature will be critical of his own conduct. I cannot accept that suggestion. Magistrates can be relied upon to be as impartial in this respect as they are in any other.

(2)Where the appeal is against conviction no application should be made at all until the grounds of appeal have been properly considered and formulated in detail. Where the application is made to this court the affidavit in support should recite the detailed grounds of appeal or have exhibited to it a copy of the notice of appeal. The affidavit should also set out such facts found by the magistrate or otherwise as are necessary to support the appeal.

(3)Where the appeal is against sentence the affidavit in support should set out, in addition to other relevant matters, sufficient of the facts found by the magistrate as will enable this court to form a fair opinion of the gravity of the offence.

Finally it should be remembered that at this stage there is no implied right to bail. The applicant is no longer presumed to be innocent, he has been found guilty. It will usually be necessary to show that the chances of a successful appeal are high and that substantial injustice will be dose by retaining the applicant in custody.

Representation:

Kevin Shuen (W.K. Poon & Co.) for applicant.

P. Duncon, Crown Counsel, for Crown.