HKSAR v. Chan Nai Ming

FAMC No. 61 of 2006

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 61 OF 2006 (Criminal)

(ON APPLICATION FOR LEAVE TO APPEAL FROM
HCMA No. 1221 of 2005)

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Between

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Coram:  Mr Justice Ribeiro in Chambers

Date of Hearing:  3 January 2007

Date of Decision :  3 January 2007

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D E C I S I O N

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Mr Justice Ribeiro PJ:

1.On 12 December 2006 the applicant began serving his concurrent sentences of three months’ imprisonment after conviction for certain copyright offences.  He has since lodged an application for leave to appeal to the Court of Final Appeal which the Appeal Committee is to hear on 7 February 2007. 

2.In the summons presently before me, the applicant seeks bail pending appeal.  As is accepted, the application properly relates to the period pending the hearing of the leave application and I will treat it as such.

3.The applicant has now been in custody for more than three weeks.  If he is not given bail, he will, by the time the leave application is heard, have served almost two-thirds of his sentence.  He seeks bail to prevent the leave application from being rendered largely nugatory, if successful.

4.The government opposes bail on the ground that there is no reasonable prospect of leave to appeal being granted, first, because the points raised are said not to be points of law of great and general importance; and secondly, because they are said to be not reasonably arguable.  

5.Those may or may not be good grounds for refusing leave.  I express no opinion at this stage since the question of whether leave should be granted is a matter for the Appeal Committee.  It is undesirable for a single permanent judge to take a stand on these questions in the context of a bail application unless the exigencies of the situation require such a course: see Sher Ali Khan v HKSAR (FAMC 4/2006, 2.2.06).

6.In the present case, there is no reason why the decision on leave to appeal should not be left to be taken in the usual way by the Appeal Committee while preserving the applicant’s position.  I will accordingly order that the applicant be admitted to bail pending determination of his application for leave to appeal on conditions to which he consents, namely, that:

(a)     he shall deposit the sum of HK$5,000.00 with the court for the purpose of securing his surrender to custody;

(b)     he shall not leave or attempt to leave Hong Kong without permission of the Court which should be sought by application to a single permanent judge;

(c)     he shall reside at the address identified by his counsel at the hearing; and,

(d)     he shall not change his address without permission of the Court, again to be sought by application to a single permanent judge.

Mr Kevin K H Pun (instructed by Messrs Chak & Associates) for the applicant

Mr Hayson K S Tse (of the Department of Justice) for the respondent