Attorney General v. Amos William Dawe

IN THE COURT OF APPEAL

1982, No. 960
(Criminal)

BETWEEN

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Coram: Sir Alan Huggins, V.-P., Fuad & Clough, JJ.A.

Date of Hearing: 26th March 1987

Date of Judgment: 26th March 1987

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D E C I S I O N

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Sir Alan Huggins, V.-P.:

1. The Attorney General comes to this court upon a notice to the Respondent to show cause why the recognizance entered into by him on 24th March 1982, the condition of which was that he return to Hong Kong for the hearing of the Case Stated and that he appear before such judge as might then be sitting to be further dealt with according to law, should not be forfeited, he having failed to appear at the sitting of the court on 17th November 1982. We were of opinion that the Condition Endorsed was sufficiently clear despite the inclusion of the final “and”.

2. We invited counsel to appear as amicus curiae because at the hearing on 27th January 1987 a question arose whether this court had power to deal with any breach of such a recognizance having regard to the provisions of the Criminal Procedure Ordinance. We have had the advantage of argument by Miss Fi-Lan Chua.

3. We are satisfied that power is to be inferred to deal with any breach of conditions of bail granted under s.84(b) of the District Court Ordinance.  If such a breach occurs, it must necessarily be in the face of the court. Section 114 of the Criminal Procedure Ordinance, which provides for mitigation of forfeitures of recognizances, applies not only to the High Court but also to the Court of Appeal.  It is by virtue of that section that this court has in the past adopted the practice of giving notice to the person bound before it estreats bail.

4. We have heard Mr. Dawe at length as to his complaints and submissions. Many of the matters he mentioned were quite irrelevant to the matter under consideration by the court:  we are not concerned generally with the justice of his conviction nor with the length of the term of imprisonment which resulted therefrom. We see no ground for mitigating the forfeiture. Accordingly we declare the recognizance forfeited and order estreatment of the full amount.

5. The statutory provisions relating to the forfeiture of recognizances entered into upon the granting of bail are in a state of some disarray. A sub-committee of the Law Reform Commission is currently considering the question of bail generally, and we trust that it will pay particular attention to the law relating to the enforcement of recognizances.

26th March 1987.

W. Marshall, C. Allison & Eric Lau for Crown/Applicant.

Respondent in person.

Fi-lan Chua as amicus.