Attorney General v. Amos William Dawe
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CACC000960A/1982 Criminal law - bail - breach of condition - notice to surety to show cause why recognizance should not be forfeited - relief will be granted only where all reasonable steps taken to ensure presence of defendant - evidence of such steps necessary.
BETWEEN
----- Coram: Sir Alan Huggins, V.-P., Yang & Barker, JJ.A. Date of hearing: 23 December 1982 __________ JUDGMENT __________ Sir Alan Huggins, V.-P. : 1. In 1981 charges were preferred against Amos William Dawe. He was tried and was acquitted. Thereafter the Attorney General, being aggrieved with the acquittal, filed an application for a review of the matter by way of case stated. The Defendant was then released on his own recognizance with a surety, the Respondent now before us, Mr. Ho Kong. The terms of the recognizance were that Mr. Ho would pay a sum of $50,000 if Amos Dawe did not return to Hong Kong for the hearing of the case stated and appear before the judge on the date to be notified by the Registrar of the court. 2. This appeal came on for hearing and Dawe was present but judgment was reserved and was delivered just under a month later. In the mean time Dawe had left the Colony. He did not return for the delivery of judgment and, so far as is known, has never returned since. He was entitled under the terms of the recognizance to leave the Colony but it was the duty of the surety to ensure that he returned and I would most respectfully adopt the words of Lord Chief Justice Widgery in Reg. v Horseferry Road Magistrates' Court ex parte Pearson 1976 2 All E.R. 264 in Preference to those of Lord Denning in Reg. v Southampton Justices ex parte Green 1976 Q.B. 11 when Lord Widgery said at p.266:
Prima facie this sum stands forfeited, because the condition was not fulfilled. Only if the surety can show that all reasonable steps were taker to ensure that the Defendant was present can he hope for relief. There is no evidence whatever put before us, and therefore from the start it is difficult for us to say that the sum should no be forfeited; but,as I understand it, nothing can be said, because nothing was done until after Dawe failed to return. It must have been obvious that a man who had had to be extradited on a previous occasion to come and stand trial in Hong Kong might very well not return. if he left the Colony and, if the surety was prepared to remain as surety after Dawe left the Colony, then in my judgment it was his obligation to take some steps to ensure that he return. Nothing was done until after Dawe failed to return and that is not good enough. I see no reason why the full amount should not be forfeited and I would so order. Yang, J.A.: 3. I agree and I would add that the crucial matter in this case is not so much that Mr. Ho had not prevented Mr. Dawe from leaving Hong Kong. It seems to me that the more important matter of the whole case is that he had done nothing to ensure that Mr. Dawe would return. Barker, J.A.: 4. I agree. Representation: W. Wong (T.S. Tong & Co.) for surety. |