The Queen v. Oscar Lai Ka To
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1. This is an application for bail pending appeal.
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1992, No. 229 H E A D N O T E Bail pending appeal. R. v. Watton (1978) 68 Cr App R 293 considered. R. v. Tam Chung-sing [1988] 2 HKLR 214 followed. IN THE COURT OF APPEAL 1992, No. 229 BETWEEN
------- Coram : Bokhary JA in chambers Date of Hearing: September 14, 1993 Date of Judgment: September 14, 1993 ------------------------ J U D G M E N T ------------------------ Bokhary JA: 1. This is an application for bail pending appeal. 2. On June 2 last year, the applicant, a solicitor in his late fifties, was convicted in the High Court on five counts of offering an advantage to a public servant, contrary to section 4(1) (a) of the Prevention of Bribery Ordinance, Cap.201. 3. He was on the following day sentenced to seven years' imprisonment by way of concurrent terms of that duration on each count on which he was convicted. 4. His appeal will come on for hearing on March 1 next Year. The hearing of the appeal is estimated to last eight weeks, although I have heard some expression by counsel on both sides of hope that it will not take quite as long as that. Be all of that as it may, the result of the appeal is, it would seem, unlikely to be reached until sometime towards the middle of next year. 5. If he is not allowed bail pending appeal, the applicant will have been in custody for three years by then. 6. That is to be viewed in the context of four years and eight months, which is what seven years comes down to with full remission; and there is no reason to believe that the applicant will not earn full remission. 7. Bail pending appeal is exceptional - and quite rightly so. 8. Generally speaking, there are two bases on which bail pending appeal may be considered appropriate. One has to do with the readily apparent strength of the appeal. The other has to do with the period which will have elapsed by the time the result of the appeal is reached. It is upon the latter basis that the present applicant relies. 9. The Crown opposes bail, but does so in a moderate and constructive way. Mr Huggins who leads for the Crown has drawn my attention to the decision of Court of Appeal in England in R. v. Watton (1978) 68 Cr App R 293, where, at page 296, the Court adopted a formulation to this effect:
10. It is perfectly true that the refusal of bail in the present case would not render the appeal nugatory in the sense there contemplated. That certainly is true. But it is by no means conclusive. It is not the practice of this Court, upon an application for bail pending appeal on the "time" basis, invariably to refuse the application unless such refusal would render the appeal nugatory in the sense that the sentence will probably have been served by the time the result of the appeal is reached. 11. The jurisdiction of this Court upon such an application is not fettered by statute. Section 83R of the Criminal Procedure Ordinance, Cap. 221, states quite simply that:
12. Nor is this Court's jurisdiction fettered by any practice. For example, in R. v. Tam Chung-sing (1988) 2 HKLR 214, Cons VP granted bail pending appeal on the "time" basis to an applicant who would have served just over half his sentence by the time when the result of his appeal against conviction was likely to be reached. 13. Quite apart from the judicial qualities of that learned judge, who was not at all prone to aberration, I am perfectly placed to repel any suggestion that advocacy could conceivably have accounted for that result, since I was leading counsel for that applicant. 14. All the circumstances have to be viewed and viewed with great care. The answer lies not in mathematics alone. If it did lie in mathematics alone, this branch of the law would probably attain a high degree of certainty. But certainty is only one element - by no means the only one of practical justice in action. 15. In opposing bail and doing so in a commendably moderate manner, Mr Huggins points out that it may be necessary, or is at least prudent, to guard against creating any impression that in cases of relatively short sentences bail pending appeal is practically inevitable since the sentence less remission is likely to be as long as the time which it will take to bring an appeal on for hearing even in the best of all worlds. 16. If there was any danger that such a notion might get abroad, I make my contribution towards the squashing of that notion here and now. 17. All the circumstances have to be looked at; and when I look at all the circumstances in this case, I find myself satisfied that the danger of injustice upon a refusal of bail far outweighs such a danger as there may be that the applicant, if granted bail, will not surrender to his bail. Mr Huggins concedes that the danger of the present applicant failing to surrender to his bail is slight. And that indeed is my view. 18. The exercise, like so many of these exercises, is a balancing one. All things considered, I consider that the correct course in the present case is to admit the applicant to bail. 19. There is no difficulty over the terms. In his affidavit dated August 31 this year made in support of this application, the applicant sets out the terms on which he had been granted bail by the learned trial judge at an earlier stage of this rather lengthy piece of criminal litigation. The terms which he sets out are seven in number; but I am concerned only with the first five, since the seventh condition has been spent and the sixth condition is not sought by the Crown. The first five conditions, as set out in his affidavit from which I read, are these:
That of course is the applicant speaking. 20. Now, as far as the surrender of travel documents is concerned, hitherto such surrender had been to the Independent Commission against Corruption. But now the Crown suggests that the surrender be to the Court; and that is not opposed by the applicant. So, as far as condition (4) is concerned, it will be on that basis. 21. As far as (3) is concerned, what I propose to do is to say this. Any of the sureties who acted as such in relation to the bail granted by the learned trial judge is acceptable. And in so far as any fresh surety is proffered, such surety is to be approved by the Registrar. 22. The applicant is allowed bail pending appeal on the five conditions which have been indicated. 23. Subject to any other matters which may arise and which counsel will no doubt bring to my attention, it remains, as far as I can see, only for me to thank counsel on both sides for their assistance.
Mr R. Ferguson QC & Miss Lisa Wong (instructed by Messrs Kenneth K.C. Wong & Co.) for the applicant Mr A. Huggins QC & Mr Alfred Chan (instructed by Messrs Herbert Smith) for the Crown |