The Queen v. Kwan Fat-kai and Others

DCCC000264/1980

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CRIMINAL JURISDICTION

CASE NO. 195 & 264 OF 1980

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Coram: H.H. Judge B.W.M. Downey, D.J.

Date of Judgment: 22 October 1980.

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REASONS FOR DECISION

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1. In each of the above cases the defendants expressly mentioned were released on bail upon their first appearance in the District Court. In each case, bail was granted on condition that the defendants provided sureties in a recognizance of $20,000 in the case of KWAN Fat-kai; and in the sum of $3,000 in case of CHUN Chi-cheung. In each case, the sureties deposited with the Court brand-new savings bank passbooks, opened on the day the sureties were approved with deposits of the amounts of the sums specified in their recognizances.

2. On the dates fixed for their respective trials, neither the defendants nor their sureties appeared in Court. In accordance with usual practice, I directed that notice be served on the sureties to attend to show course why their recognizances should not be forfeited. In case No. 195 of 1980, the bailiff made two attempts to effect service on the surety, but on each occasion was told by an adult inmate at the surety's last known address that the surety had moved away and his whereabouts were unknown. In case No. 264 of 1980, the bailiff left the notice with a person, who claimed to be the brother of the surety, again at the surety's last known address. I am now invited to order that the above-mentioned sums be forfeited.

3. The power to order forfeiture of a recognizance is a discretion which must be exercised judicially. It can be exercised in the absence of the surety, but only in my view if the Court is satisfied that the surety has been given adequate notice of the proceedings. In the case of obvious default by the principal, calling upon the surety to show cause why he should not fulfil the serious obligation he has undertaken, to the Court and Her Majesty the Queen, has been described as "an absolutely correct first step" of. R.v. Tottenham Magistrates' Court, exparte Riccardi (1978) 66 Cr. App. Rep. 150, at 154. In England, there are express statutory provisions setting out the procedural steps which must be taken before an order of forfeiture can be made. See Order 79, r 8 of the Rules of the Supreme Court and rules 18A and 23 of the Crown Court Rules 1971. Although there appear to be no statutory rules regulating the procedure in Courts of summary jurisdiction, the learned editors of Stone's Justice's Manual 1980, Vol. I (at P.353) express the view that natural justice requires that some formal notification should be sent, giving the surety the opportunity of attending and making representations.

4. In Hong Kong, there appear to be no obvious express provisions regulating the procedure to be followed in the District Court. Section 45(1) of the Criminal Procedure Ordinance (Cap. 221) recognises the practice of calling the surety "on his recognizance", but this provision only deals with the principal's failure to appear for arraignment. It does not obviously deal with subsequent default on his part. More to the point, it does not indicate the procedure to be followed in the event that the surety is not than physically within the precincts of the Court. Sections 110 to 114 of the same Ordinance appear to deal with situations where forfeiture has already occurred, or is being considered by a Court. In my view, they offer no clear guidance on the steps (if any) to be taken before a recognizance by a surety is forfeited. Although section 110 requires the Registrar to prepare lists of persons bound by recognizance ".... who have made default, or whose principal, ...... has made default", section 111 provides that the writ of execution, issued by the Registrar, "shall be the authority of the bailiff for levying and recovering such forfeited recognizance ......." (emphasis supplied). These provisions appear to suggest that forfeiture occurs automatically upon default being made. I do not consider that this conclusion is to be reached on the true construction of the statute. Not only must regard be had to the different expressions in these two sections; such a conclusion would be contrary to the clear words importing a discretion found in section 13AA, 45 and 114. Quite apart from consideration of the requirements of natural justice, the fact that the Court appears to have a very limited power to revoke or remit a forfeiture is an additional reason for my view that the discretion should not be exercised, if at all, until after the surety has been given adequate notice of the Court's intention to consider forfeiting the recognizance.

5. Whether the English enacted rules referred to above (as well as sections 8A and 8B of the Bail Act 1976) extend to the District Court, as a result of the combined effect of section 9(3) of the Criminal Procedure Ordinance (Cap. 221) and section 79 of the District Court Ordinance (Cap. 336), appears to be a question on which opinion differs. See cases discussed in (1979) 9 H.K.L.J. 255 at 284-5. But, in the process of moulding a convenient form of procedure for the exercise of the Court's undoubted jurisdiction (of. Att. Gen v. Ng Shiu-fai [1977] D.C.L.R. 51, 52-3), I consider that the risk of doing injustice to a surety can be eliminated or diminished if the spirit of the English provisions is followed, and if the mode of service adopted adheres as closely as possible to other modes of service contained in relevant enactments.

6. Section 29(2) of the Criminal Procedure Ordinance (Cap. 221) provides for three methods of alternative service of the copy of the indictment and notice of trial on an accused person who cannot be found, namely, leaving them:-

"With some one of his household for him at his dwelling-house, or with some one of his clerks for him at his counting-house or place of business, and, if none such can be found, shall affix the said copy and notice to the outer or principal door of his dwelling-house."

The bailiff is also required to explain to such persons the "nature and exigency" of such documents. An accused person, in the majority of cases, will have already appeared in a Court for the purpose of committal proceedings, and will know that his physical appearance at another Court for his trial will be required at some future date. If he fails to do so, after being duly served, he can be arrested. A Surety, however, is not strictly required to attend the Court on the date fixed for trial, and if he does not attend he may not know that his principal has made default. The case for requiring some proof that he has actual notice of the default is, therefore, somewhat stronger in the case of a surety. Nevertheless, if the alternative methods of service are considered sufficient to warrant the arrest of the accused, it is not, in my view, unreasonable to regard them as sufficient to justify the making of an order in respect of the property of the surety, especially if he has shown apparent indifference to the fate of his property. Accordingly, I consider that I should adopt the provisions of section 29(2), and determine whether any of the modes of service have been satisfied in the case of these sureties.

7. None has been satisfied in Case No. 195 of 1980, since the notice was not left with the adult inmate, nor is there any indication of his relationship (if any) to the surety. Enquiries of the surety's bank revealed that he has not notified any change of address, but in the absence of any evidence of service of the kind referred to, I do not consider that such apparent lack of concern over "his" money is, by itself, sufficient to justify making an order of forfeiture, and I decline to do so in that case.

8. In Case No. 264 of 1980, however, the notice was left at the surety's last known address with a Mr. Leung Kwok Hing, who informed the bailiff that he was a brother of the surety, LEUNG Kwok-hoi. There being nothing to indicate that he has moved to another address, it is not, in my view, unreasonable to assume or infer that he has had notice and does not wish to make any representations to the Court. Accordingly, I order that his recognizance be forfeited in the full amount of $3,000.

Representation: