HKSAR v. Tan Ngan Huay

HCMA481/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 481 OF 2006

(ON APPEAL FROM ESCC 4660 OF 2005)

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BETWEEN

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Before:  Deputy High Court Judge Line in Court

Date of Hearing:  12 September 2006

Date of Decision:  12 September 2006

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D E C I S I O N

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1.I have just dismissed the appeal against conviction and allowed an appeal against sentence only in so far as to reduce a period of imprisonment.  It means that the appellant now faces a sentence of 2 months’ imprisonment.

2.At the conclusion of the hearing, counsel for the appellant made an application for bail pending appeal to the Court of Final Appeal.    One would think that the answer as to whether or not I have jurisdiction to entertain that application would be one very easy to find out.  It has turned out in the event not to be so.  I have been referred to sections 32, 33 and 34 of the Hong Kong Court of Final Appeal Ordinance. 

3.Section 34 says that the Court of Final Appeal, the Court of Appeal or the Court of First Instance, as the case may be, on the application of a person appealing, or applying for leave to appeal, or on the application of a person in custody pending the determination of the appeal, grant the person in custody bail pending the determination of the appeal.  Looking at that section,   an applicant for bail has to fall within one of those three definitions, or have the status so described in that section. 

4.In order to do that, one looks back to section 32(1), which says, “No appeal should be admitted unless leave to appeal has been granted by the court.”  In section 33(3) it says, “An appeal to the court should be treated as pending until any application for leave to appeal is disposed of, if leave to appeal is granted, until the appeal is disposed of.”

5.One must look at the persons described in section 34 to ascertain who can be granted bail.  Firstly, there is the person who is appealing.  I ask myself, “Is this lady here appealing?”  The answer to that question at the moment is, “No”.  While she has an intention to lodge an appeal, she is not yet appealing.  No process has been put in motion, no document filed and if I were to grant her bail on her intention or her undertaking to do something in the future, in fact, she would not be meeting the requirements of the Ordinance.  Secondly, is she a person applying for leave to appeal?  And the answer to that is, “No”, because there is no application made yet to the Court of Final Appeal, as it has to be, for leave to appeal.

6.Mr Ma, who makes the application for bail, concedes both of those interpretations.  He says she fits the third category, which is that she is a person in custody pending the determination of the appeal.  Well is she?  She is certainly in custody, but she is not pending the determination of the appeal, because it seems to me there is no appeal extant at the moment.  There is no determination pending, or capable of pending, because there is no appeal in existence. 

7.It seems to me that that third category of person is someone who is no longer appealing, or applying for leave, in other words, the hearing has taken place in the Court of Final Appeal, they have adjourned the case, say, for a month to give their reasons, and this allows them then to give that person bail, when they were in custody, or would have been but for the grant of bail, pending the determination, the decision of the appeal.

8.I have not wanted to stand in the way of this lady having bail, in view of the shortness of the sentence she faces.  I am very conscious that rights of appeal granted to people can be robbed of their fruits if there is a delay and there is a short sentence passed.  So, it is with reluctance I come to the view that I do not have jurisdiction to give her bail. 

9.Even though I have reluctantly reached that view, the fact is, it is a commonplace that granting bail pending appeal is subject to starting the appeal process going.  If one looks at appeals from the Magistrates’ Court there, there has to be a Notice of Appeal filed before bail can be granted by the magistrate, pending appeal to this court, and it is an analogous situation here.

10.Because I am concerned at the shortness of the sentence in relation to an appeal, I have made an inquiry myself of the Registrar of the Court of Final Appeal and I understand this to be the situation, and what I proffer now is only proffered as friendly advice.  That if you hurry, put your papers in immediately, there is always a judge there, a single judge, available to hear an application for bail.  The papers can be amended at a later stage, and so we are in a situation, almost like appealing from the Magistrates’ Court, where what you have to do is get the papers put in the right place, they can be amended later if their drafting is rather rough and ready, and an application can be made immediately for bail there to the single judge who will see the application, and that can be done within the period of one week, I am told.  So the idea of the whole of the sentence, or a substantial part of the sentence being served before the application can be got on is not one that I hope will arise in practice.

11.I hope, Mr Ma, you have heard what I have said, I hope you can get it on and make her application at the first available opportunity to someone who does have jurisdiction.

12.If I can say this, I quite accept from you that other deputy judges have granted bail in this situation.  I regret that I take a different view: I would be delighted to be told I am wrong.  If you invite the judge who deals with the care to give some guidance, then all I can say is that guidance would be much appreciated.

(Discussion re interpretation)

13.There is a provision that says that you cannot apply twice for bail without a change of circumstances.  I make it absolutely clear that this refusal is on the basis of my want of jurisdiction and there is no determination on the merits.

Representations:

Mr Cheung Wai-sun, Deputy Principal Government Counsel of the Department of Justice, for the Respondent (HKSAR)

Mr Cheng Huan, Senior Counsel, leading Mr David Ma and Mr Bernard Chow, instructed by Chung & Kwan for the Appellant Tan Ngan Huay