Chan Man Chung v. HKSAR

CACC000087A/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 87 of 2000

(On Appeal from DCCC No. 883 of 1999)

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Coram: Hon Woo, JA in Chambers

Date of hearing: 26 July 2000

Date of delivery of judgment: 26 July 2000

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JUDGMENT

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Hon Woo, JA :

1. This is an application for bail pending appeal.

2. The applicant was charged with three charges of wounding with intent, contrary to section 17(a) of the Offences Against the Person Ordinance, Cap 212, in that on 2 August 1999, at Ngan Lung Restaurant, No. 2, Ngan Chi Path, Ngau Chi Wan Village, Wong Tai Sin, Kowloon, together with other persons unknown, unlawfully and maliciously wounded three persons with intent to do them grievous bodily harm. Each of the three charges related to one of the injured persons. The applicant was tried before District Judge Whaley and convicted of all the three charges on 16 February 2000. The Judge proceeded to sentence the applicant on 17 February, and gave him 4 1/2 years' imprisonment for each of the three offences, all to run concurrently.

3. By application made on 1st March 2000, the applicant seeks leave to appeal against both conviction and sentence. By summons dated 18 July 2000, the applicant seeks bail pending appeal.

4. Under section 83R of the Criminal Procedure Ordinance, Cap 221, the Court of Appeal may admit an appellant, including a person who has given notice of application for leave to appeal, to bail pending the determination of his appeal. The criteria for admitting an appellant to bail pending appeal are set out in section 83Z of the Ordinance, as follows :

5. The criteria in (a) and (b) above are not satisfied in the present case, because the applicant had been sentenced and the sentence being 4 ½ years' imprisonment is unlikely to be completed before the disposal of the appeal or of the appeal being allowed. Indeed, what Miss Wong, for the HKSAR, tells me is that the appeal can be fixed to be heard at the end of August 2000, which lends further support that criterion (b) is quite irrelevant. The only remaining factor is (c), whether there is any other matter that appears to this Court to be relevant for considering if bail should be granted.

6. The practice in England regarding bail pending appeal is quite similar to that in Hong Kong. The criteria are encapsulated in a paragraph in Archbold: Criminal Pleading, Evidence and Practice 2000, para 7-187 as follows:

"In deciding whether to grant bail pending appeal 'the true question is, are there exceptional circumstances, which would drive the Court to the conclusion that justice can only be done by the granting of bail?": R. v. Watton, 68 Cr. App. R. 293, 297, CA. Such circumstances will exist where it appears prima facie that the appeals is likely to be successful or whether there is a risk that the sentence will have been served by the time the appeal is heard: ibid. In R. v. Landy, 72 Cr. App. R. 237 (unreported on this point), the court granted an appellant bail pending appeal, having been satisfied that there was 'a substantial point' to be argued on misdirection 'and that it could result in the conviction being quashed'. A further determining factor was that the hearing of the appeal would be delayed for some months in order for the transcript to be prepared."

7. In his affirmation in support of the application for bail, the applicant states that he is 40 years of age and used to live, before his incarceration, at a fixed abode with his parents, wife, a son and a daughter. Although he was born in China, he was permitted to live in Hong Kong when he was about 3 to 4 years of age. Before his conviction, he was a waiter in a restaurant. He has a few criminal records, but there is no history of his jumping bail. His counsel, Mr Wong, who also appeared for him at the trial informs me that he had surrendered himself to the police in respect of this case. He was also on bail prior to the trial before the Judge.

8. The defendant having a fixed abode and his roots in Hong Kong, and being with his family and constantly under employment are not even persuasive grounds for bail at this stage where the applicant has been convicted as they would be under the criteria provided in section 9G of the Criminal Procedure Ordinance that are applicable to accused persons who have not yet been convicted.

9. Also exhibited to his affirmation is the perfected grounds of appeal against conviction signed by his counsel, Mr Wong. By those grounds, counsel argues that there is a strong case for succeeding on the appeal against conviction. The grounds mainly relate to doubts regarding the evidence of identification of the applicant in the attack in which the three persons named in the charges were severely wounded, and how the Judge failed to resolve discrepancies in such evidence. I have gone through the reasons for verdict pronounced by the Judge on 16 February 2000, which had dealt with the identification evidence in some detail. I have also considered carefully the submissions made by counsel and the parts of the transcript to which my attention was drawn by Mr Wong. I do not wish to comment on the grounds of appeal with any particular in order not to jeopardise the applicant's chances of appeal against conviction, save to say that I am not impressed by the grounds as presenting a good opportunity of success.

10. In the circumstances, the application is dismissed.

Representation:

Mr Wong Man-kit, instructed by Messrs Chan & Tsu, for the applicant

Miss Lily Wong, GC of the Department of Justice, for the HKSAR