Au Wai-keung v. The Queen

Case No.HCMP 58/1971

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCMP000058/1971

IN THE SUPREME COURT OF HONG KONG

CRIMINAL JURISDICTION

MISCELLANEOUS PROCEEDINGS NO. 58 OF 1971

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	IN THE MATTER of an Application for Bail by AU Wai-keung alias LEUNG Tak-shing.
	and
	IN THE MATTER of Section 13 of the Criminal Procedure Ordinance (Cap. 221).
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	AU Wai-keung alias LEUNG Tak-shing	Applicant
	and
	The Queen	Respondent

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Coram: Pickering, J. (in chambers).

Date of Judgment: 25th March, 1971.

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DECISION

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1. This is an application for bail.

2. The applicant who is 23 years of age and who lives at No. 39, Lung Kwong Road, 1st floor, Kowloon City, with his wife, two sons, a daughter and his parents and two brothers and two sisters, is charged with the offences of robbery, theft and three charges of taking conveyance without authority.

3. The applicant was arrested on the 4th of March 1971, and on the 6th of that month whilst in police custody at Queen Mary Hospital was remanded by a magistrate until the 9th of March upon which date he was again remanded at Western Magistracy until the 12th of March.

4. According to the applicant's affirmation, on the 12th of March he applied for bail through his counsel Mr. A.J. Sanguinetti, and the prosecution objected to bail on the grounds:-

	(i)	there was a possibility that he would abscond and not appear at his trial;
	(ii)	there was a possibility of his interfering with a prosecution witness Madam HA Lai-chun based on an alleged statement made by her to the police after his arrest to the effect that he did not care if she reported the matter to the police together with an allegation of threats made by him to her; and
	(iii)	the seriousness of the offences and his past criminal record.

According to the applicant's affirmation, bail was refused by the learned magistrate on the grounds of the seriousness of the offences and his past criminal record.

5. The applicant now applies to me for bail, and I am informed that it is the Crown's intention to apply to-day for transfer of the case against the applicant to the District Court.

6. When the application was argued before me, there was some tendency to treat it as an appeal from the refusal of bail by the learned magistrate: thus Mr. Sanguinetti suggested that because the possibility of interference by the accused with an important witness for the Crown was not one of the reasons expressed by the magistrate for his refusal of bail, it was not open to this court to take the suggestion of such interference into consideration. With respect, that appears to me to be a wrong approach to the matter. This is not an appeal but a fresh application to a judge for bail, and it is competent for me to take into account all the matters covered by the affidavits on both sides.

7. On the other hand, there was a tendency on the part of Mr. LI, for the Crown, to give evidence in the shape of further particulars on matters asserted, but not elaborated, in the affidavit of Inspector Mullens filed on behalf of the respondent. I shall exclude from my mind all such further particulars and have regard to the material contained in the affidavits and to that only.

8. The burden of resisting the grant of bail is upon the respondent and in support of its opposition to such grant, the Crown, through the medium of an affidavit by Inspector Mullens, asserts:-

	(i)	that there is a real danger of intimidation or other interference with the complainant by the applicant if he is at liberty. In this connection, it is said that the complainant will give evidence that when the applicant robbed her, he together with another Chinese male threatened her with words of violence and said that they would not be afraid if she reported the matter to the police since they had her address and telephone number and since they had killed many people like chickens. It was further stated in Inspector Mullens' affidavit that the complainant had been forced at knife point to disclose the true name, place of work, home address and telephone number of her husband which particulars the applicant immediately recorded in writing.
	(ii)	that there is every likelihood that the applicant would abscond if granted bail and fail to appear at his trial. In support of this assertion, Inspector Mullens' affidavit claims that the applicant is known by five names other than the name of LEUNG Tak-shing, i.e. AU Pei-tak, Peter AU, AU Hon-lung, AU Wai-keung and Jimmy CHEUNG; that he has at least two places of abode and he has access to other travelling documents besides the re-entry permits to Macau and the mainland of China which are now in the possession of the police.
	(iii)	that the applicant's criminal record militates against the grant of bail as does
	(iv)	the seriousness of the offences, in particular, the offence of robbery.

9. The applicant has five criminal convictions committed between the ages of 12 and 21 and they are, in chronological order, for simple larceny, demanding money with menaces, wounding, four counts of larceny from the person and aiding and abetting the remaining in the Colony of an illegal immigrant.

10. The only prison sentences which the applicant has served are in respect of the offences of larceny from the person for which he was sentenced to 12 months on each charge concurrently and for aiding and abetting the remaining in the Colony of an illegal immigrant in respect of which offence he was imprisoned for 6 months in December 1968.

11. I am not persuaded that either the seriousness of the alleged offence of robbery or the nature of the applicant's criminal record would individually inhibit me from granting bail in this case. It has however not been denied by or on behalf of the applicant that at the time of the alleged robbery he together with another Chinese male threatened the complainant and said that they would not be afraid if she reported the matter to the police since they had the address and telephone number and since they had killed many people like chickens, nor has it been denied that the complainant was forced at knife point to disclose her husband's name, work place, home address and telephone number which details the applicant thereupon recorded in writing. If this conduct did not reveal a true record of violence, it certainly amounted to a mask of violence intended to intimidate. In my opinion, it is precisely the sort of conduct and implied threat as to raise a distinct possibility bordering on probability that there would be interference with the complainant if the applicant were at liberty. I am unimpressed by the argument that the second man alleged to have been present at the robbery is still at large and could by now have interfered with the complainant had he so wished. The two men may be of very different calibre, and it was indeed the applicant who recorded the details of the addresses and telephone number of the complainant's husband.

12. I can place no importance upon the respondent's allegation that the applicant has two places of abode and is believed to have access to other travelling documents besides those held by the police. No particulars as to the second alleged place of abode or the nature of the travelling documents to which he is said to have access have been condescended upon. However, whilst I have said that neither the seriousness of the alleged offence of robbery nor the past criminal record of the applicant would necessarily individually have inhibited me from the grant of bail when those matters are considered in conjunction with the uncontradicted threats uttered by the applicant at the time of the alleged robbery, I am convinced that the interests of justice require that the applicant be detained in custody pending his trial.

13. Despite Mr. Sanguinetti's very able argument in the course of which he alluded to the new Section 13A of the Criminal Procedure Ordinance introduced by the Criminal Procedure (Amendment) Ordinance 1971 which came into force less than a month ago and which empowers the court to impose conditions on admission to bail, I am unconvinced that any conditions I could impose would prevent a determined man from interfering with the complainant if he were so minded. The application for bail is refused.

	(W.F. Pickering)
	Puisne Judge

Representation: