The Queen v. Keung Cam Yuen Alias Keung Kam Chuen

CACC000527A/1985

IN THE COURT OF APPEAL

BETWEEN

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Coram: Li, V. -P., Silke, J.A. & Power, J.

Date of Hearing: 26th May 1986

Date of Judgment: 26th May 1986

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JUDGMENT

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Bail: Convict absconding before delivery of reserved judgment: Forfeit of cash sums lodged by sureties.

Silke, J. A. :

1. An appellant, Keung Cam Yuen, having been convicted in the District Court on various offences relating to obtaining property by deception, filed a Notice of application for leave to appeal against those convictions.

2. On the 11th January 1986 a single judge of this Court, under the provisions of section 83R of the Criminal Procedure Ordinance, granted him bail. The terms of the bail included` two sureties in the cash sums of $250,000 each. Those sureties were Madam Natalie Chong Lai Lan and Mr. Cheng Ching Hoi. I would emphasise that both those sums were bash sums, not recognizance in the sense of a promise to pay. The sums were lodged in Court.

3. The appeal itself was heard between the 8th and the 11th of April. Judgment was reserved. On the 22nd April, judgment was delivered. The appellant, whose bail had been continued until the determination of the appeal, did not appear.

4. We were informed that he had written a letter to his wife stating that he did not intend to appear.

5. Summonses to show cause were issued to and served upon both the sureties. In these proceedings both appeared in answer to the summonses. Both were represented by Mr. Mullick and we have heard both in evidence.

6. The principles in relation to matters of the estreating of a recognizance were succinctly set out in R. v. Uxbridge Justices, ex parte Heward-Mills,⁽¹⁾ at page 535. There McCullough J., having considered a large number of English authorities, said:

"I would draw together the more important principles to be derived from the authorities, as follows. (1) When a defendant for whose attendance a person has stood surety fails to appear, the full recognizance should be forfeited, unless it appears fair and just that a lesser sum should be forfeited or none at all. (2) The burden of satisfying the court that the full sum should not be forfeited rests on the surety and is a heavy one. It is for him to lay before the court the evidence of want of culpability and of means on which he relies. (3) Where a surety is unrepresented - (and this does not apply in this instant case) - the court should assist him by explaining these principles in ordinary language, and giving him the opportunity to call evidence and advance argument in relation to them."

7. In R. v. Waltham Forest Justices, ex parte Parfrey,⁽²⁾ a hearing which was largely concerned the means to pay the sum forfeited under a recognizance, Donaldson L. J. (as he then was) said at page 211:

"The obligation entered into by someone who enters into a recognizance as a surety is a very serious obligation indeed ........ There is an obligation on a surety to be fully satisfied that he or she can meet the liability which will arise if the accused person does not surrender to his bail. This failure to surrender is not a theoretical possibility, though a surety may think it is. The unhappy event of arrested persons not surrendering happens frequently. There is a real risk. Indeed it is difficult to conceive of a set of circumstances in which a surety can be absolutely sure that the accused will surrender to his bail. So let no one think that this is an obligation which can be entered into lightly."

Here, of course, the matter of ability to pay was to a large extent overcome by the cash deposit. This avoided the necessity for those approving the recognizance to consider the means of the person seeking to be the surety. Non appearance is not a frequent occurrence as far as this Court is aware. It has happened once before in Dawe. ⁽³⁾ But, with those two reservations, we would with respect adopt that which Donaldson L. J. said as to the serious nature of the sureties obligation.

8. In R. v. Horseferry Road Magistrates' Court ex parts Pearson,⁽⁴⁾ Lord Widgery, C. J. said that forfeiture of recognizance is in no sense a penalty imposed on the surety for misconduct. He did not doubt that a magistrate, before forfeiting the recognizance, must consider amongst other things the conduct of the surety and see whether it was open to criticism or not. He then made reference to that which became the origin of part of McCullough J 's principles:

"But one must, I think, start all these problems on the footing that the surety has seriously entered into a serious obligation and ought to pay the amount which he or she has promised unless there are circumstances in the case, relating either to her means or her culpability, which make it fair and just to pay a smaller sum."

9. Madam Chong is the sister-in-law of Keung, the absconding convict. She was in contact with him and his wife. On the 19th April, she arranged to have lunch with him but was unable to do so because Keung west to have lunch with his solicitors. That was the last direct contact she had with him.

10. On the 20th April, and it must be remembered that at this time the fact that judgment would be delivered on the 22nd April was known, she went to the Wong Tai Sin Temple with Keung's wife and asked her where Keung was. The reply was that the wife had gone to bed early and, therefore, had not seen Keung that morning. On the 21st April, the day before judgment was to be delivered, Keung's wife told Madam Chong that she had found a note in a drawer which indicated Keung's intention not to appear. Both Madam Chong and the wife went to the solicitors on record to show them the note.

11. Mr. Cheng had, between the 11th January 1986 when he entered into the surety and the 22nd April, seen Mr. Keung twice. He had also been n contact with Madam Chong, who was an old friend of his and whom he said persuaded him to act as surety in the first place. He had, in the course of conversation relating to other matters, asked how Keung was but that was as far as he went.

12. As regards means: Madam Chong said that she had sold a quantity of gold in order to provide surety in cash of $100,000 in the District Court and also to help Keung's wife provide him with portion of his own personal bail in that court.

13. When the Court of Appeal granted bail in the sum of $250,000, she had borrowed, she said, a considerable portion of it from other people and the sum of $30,000 from a company. Later, she retrieved the $100,000 deposited in the District Court and repaid it to those from whom she had obtained loans.

14. Mr. Cheng tells us that he borrowed a very large proportion of the sum for which he made himself responsible. He described himself as a Chief Accountant on a salary of $5,000 per month.

15. Speaking for myself, it seems very clear that if a Chief Accountant on s salary of $5,000 a month had not deposited the sum of $250,000 cash, it is unlikely that he would have been accepted as a suretor in the first place and certainly his background and his means would have been gone into some considerable detail.

16. Having accepted that there is a heavy obligation upon a surety to see that the person for whom they have become responsible attends court for that surety to establish that the monies, which he has promised to pay or which he has placed in court as a guarantee for that appearance, should be returned to him necessitates the discharge of a heavy burden. The principles with which we are particularly concerned in this instant case is whether it would be fair and just that a lesser sum should be forfeited or none at all.

17. We have heard nothing to show that forfeiture of the sums involved would cause either of the sureties undue hardship. They knew, or should have known, what they were doing and the risks involved.

18. Both, and in particular Mr. Cheng, treated their obligations lightly. They have failed to show cause why they should be given relief on the grounds of want of culpability - though there is no suggestion that they connived at or assisted in Keung's failure to appear.

19. In the instant case, we do not think that it would be fair and just that these recognizances should be diminished.

20. We think it proper that the full sum should be forfeited and we would make that order in relation to both of the sureties.

(1)    [1983] 1 A. E. R. at 530

(2)    (1980) 2 Cr. App. R. (S) 208

(3)    Criminal Appeal No. 960 of 1982

(4)    [1976] 2 A. E. R. 264

Representation:

John Mullick, Esq. (Peter W. K. & Lo) for sureties.

G. J. X. McCoy, Esq. for Crown.