Re Chiu Kwok-keung

HCMP001978/1982

IN THE SUPREME COURT OF HONG KONG

MISCELLANEOUS PROCEEDINGS NO. 1978 OF 1982

Coram: Hon. Penlington, J, in Chambers

Date: 4 November 1982

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DECISION

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1. This is an application for review of bail by the Crown, under section 12C of the Criminal Procedure Ordinance. This is a relatively new provision. Up to at the time of the passing of this amendment, which was in 1979, the question of bail was essentially one for the Court before whom the accused person appeared, save that the accused person himself had the right to apply again to the High Court. It is a provision passed, I think it is a matter of common knowledge, following the granting of bail and the subsequent departure of persons who were alleged to be very substantially involved in the narcotics traffic in Hong Kong. It is clearly a power that should be exercised sparingly and the Crown has not made many such applications.

2. The ground upon which the magistrate decided to grant bail was that he found the case against these two accused, while sufficient to commit them to the trial, was not as strong as against the other two and taking into account their age and the evidence against them he obviously felt that it was a proper case to grant bail, albeit in substantial amounts and subject to the usual conditions of reporting and surrender of travel documents.

3. At the hearing of this matter I was informed by Crown Counsel that he cannot place any reliance on a previous conviction of the second accused for possession of dangerous drugs for the purpose of unlawful trafficking. Whilst it is not clear what the circumstances of that particular case were it does seem that that conviction may not be reliable. Clearly would have been a very important factor but I must therefore consider the case on the basis that neither of the accused had any previous conviction for drug related offences. Mr. Iu, in his persuasive argument, has said that while conceeding it is a serious charge, the case against each of these two accused is not strong and particularly he refers to a statement made by the 1st accused at the time in which he said that these two men came to the flat purely at his invitation for a social visit and while they have been contaminated by the drugs in their clothing and in their finger-nails there was no evidence such as finger prints to show that they were engaged in manufacturing or had any other contact with the drugs.

4. Quite clearly a very large quantity of the drugs was found on the premises together with the usual paraphernalia associated with manufacturing although apparently the Government Chemist cannot say whether in fact manufacturing had taken place in the flat. I certainly appreciate the strength of that and also the fact that while the 3rd accused is said to have stated to the Police when he was arrested leaving a flat that he was going to collect caffeine, in fact 1.70 kilos of caffeine was found in the flat, which throws some doubt upon that statement. Nevertheless a large quantity of drugs was found in this flat as was equipment for manufacturing. The flat was apparently bare with a little furniture in it and this flat was used for manufacturing and really for nothing else. The 2nd accused was actually found in a flat and if the Crown can establish the manufacturing, the presumption will operate against him. The 3rd accused was found leaving the flat and no doubt the Crown will argue that he is also a person against whom the presumption will prevail.

5. While I agree with the Magistrate that the evidence against these two accused is not as strong as against the others I am satisfied that it is nevertheless quite a strong case. Inevitably a very substantial sentence which will follow a conviction on these charges, in view of the amount of drugs seized, whilst the applicants have no previous convictions of similar offences they do not have clean records, both are single and, as Mr. Dick has said, and I think it is a matter which a court must have taken into account, in the past persons charged with the serious drug offences have been able to leave Hong Kong and there are places of refuge for them not too far away. Taking all those facts into account I am satisfied that the magistrate should not have granted bail. I grant the application for the Crown to review the decision and both accused will be remanded in custody pending trial.

Representation:

Mr. Dick S.C.C. for Crown/Applicant

Mr. T. Iu (Y.K. Poon) for both respondents