The Queen v. Tam Chung Shing and Another

HCMP002448/1987

THE COURT OF APPEAL

1987, No 2448

Miscellaneous Proceedings

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BETWEEN

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Coram: Hon. Cons, V.-P. sitting in the Court

Dace of hearing: 15th March, 1988.

Date of delivery of judgment: 15th March, 1988.

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J U D G M E N T

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Cons, V.-P.:

1. These are renewed applications for bail pending appeal to this Court by the 1st and the 6th Defendants. Their earlier applications were refused, in regard to the 1st Defendant in November last year and in regard to the 6th in December last year. Both had been convicted of conspiracy to defraud and had been sentenced to four years and three years respectively.

2. At the time of the earlier applications it had been assumed that: if a full transcript were necessary for the purposes of appeal, it would take about one year for that transcript to be prepared. That is to say it would be completed by about October 1988. But it was hoped that a transcript of the whole of the proceedings would not be necessary, and that a reduced transcript could be prepared well before that date.

3. It has to be accepted now, however, that a full transcript will be necessary, including even the opening and closing submissions. I am also told that the earliest that it can be ready is by the end of the year. Time will then have to be allowed for further preparation for the hearing and the hearing itself. It seems likely therefore that the earliest that the Defendants will know their fate will be the end of March 1989. Even that may be an optimistic forecast.

4. By that date the 1st Defendant will have served eighteen months of his forty-eight months' sentence, and the 6th Defendant eighteen months of his thirty-six months' sentence. Taking into account remission, which is automatic provided the Defendants behave themselves in prison; the 1st Defendant would have served over half his sentence, and the 5th Defendant above two-thirds.

5. An application of this kind is not intended to be an opportunity to put forward submissions which could have been, but were not, put forward at the earlier hearing, or to put forward the same submissions more persuasively. The Court will only reconsider an application in the light of circumstances which have changed since the first hearing.

6. In the affidavits in support of the motion - I should interpose here that I did not find it necessary to call on counsel in this respect - two changes are suggested as having so occurred. One is the change of timetable with regard to the transcript to which I have already referred. The other is said to be the introduction of the Prisoners (Release Under Supervision) Ordinance 1987 Ord. 59/87 which will come into effect on the lst July 1988. In my view, although I speak, as 1 mentioned, without the benefit of the assistance of counsel, - that is not a circumstance which has changed since the last hearing. The Ordinance had by then already been passed.

7. I accept that the effect of the changed timetable is significant and warrants the granting of bail to the present Applicants, subject to security sufficient to reflect the gravity of the sentences already passed. In this respect I have had the benefit of assistance from counsel, and I am satisfied that each applicant may now be granted bail pending appeal in the sum of $100,000 cash, a surety to be approved by the Registrar in the sum of $200,000, together with the surrender of all travel documents and reporting every Tuesday and Friday between the hours of six and nine in the evening, in the case of the lst Defendant to the tsuen Wan Police Station, and in that of the 6th Applicant to Happy Valley Police Station.

Representation:

R.A. Davies, Legal Department for Respondent

Kemal Bokhary, Q.C. & Peter Cheung (Hoosenally & Neo) for A1

A. Sedgwick, Q.C. & A.R. Suffiad (T.S. tong & Co.) for A6