HKSAR v. Nzimbi Kouadeba Soha Pauline

CACC 245/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL CASE NO 245 OF 2012

(on appeal from DCCC 356 of 2012)

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Before: Hon Yuen JA in Chambers (open to the public)

Date of hearing and decision: 26 October 2012

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DECISION

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1.This is the Applicant’s application for bail pending appeal against sentence.  On 28 May 2012 she had pleaded guilty before Deputy District Judge K H Cheang to:

(1) a charge of conspiracy to deal with property known or believed to represent proceeds of an indictable offence, and

(2) using a false instrument, namely a passport issued by the Democratic Republic of the Congo.

2.The Applicant (aged 43) had in the 2 years between August 2009 and September 2011 used 8 false names and 8 false passports purportedly issued by 4 different countries to open 16 accounts with 6 different banks in Hong Kong.  In August 2010 she purported to bank a forged cheque into one of those accounts.  This formed the basis of Charge (1).

3.In December 2011 when the police saw her at her residence, she was asked to produce identification.  She produced a DRC passport but subsequent investigations showed that it had been tampered with, as some pages had been removed and some pages had been substituted.  This formed the basis of Charge (2).

4.She was convicted on her pleas and was sentenced on 29 May 2012 to a term of imprisonment of 21 months for Charge (1), and a term of 12 months for Charge (2), 6 months of which were to be served consecutively to the term of imprisonment for Charge (1).  The total term of imprisonment was therefore 27 months.

5.On 13 June 2012 she applied for leave to appeal against sentence in respect of charge (2) only.  No ground was profferred.  The application is due for hearing on 31 October 2012, less than a week from today.

6.On 17 October 2012 she applied for bail pending appeal against her sentence on Charge (2).  In an affirmation supporting the application, she stated that she was “innocent of the charge” laid against her.  However she had pleaded guilty to Charge (2) as well as Charge (1).

7.The court has an unfettered discretion in deciding whether to grant bail pending appeal.  It is usually only granted where it appears prima facie that the appeal is likely to be successful.  Another pertinent factor is a risk that the sentence will have been served by the time the appeal is heard.

8.I have taken into account the following factors:

(1) the Applicant’s ground of appeal is contradicted by her plea;

(2) she has not applied for leave to appeal in respect of Charge (1) for which she is still serving sentence;

(3) her application for leave to appeal in respect of Charge (2)  will be heard in less than a week’s time.

In these circumstances, I do not see any grounds for granting her bail pending appeal and I would dismiss the application.  

Mr William Siu, SPP(Ag.) of Department of Justice for the Respondent

The Applicant, in person, present