Wan Shui Ying and Another v. Attorney General

CACV000145/1989

HEADNOTE

Bail - forfeiture of cash bail - principles to be followed - non-forfeiture or partial forfeiture of cash bail should only be ordered in rare cases of great hardship. Not so in this case - appeal against forfeiture order dismissed.

BETWEEN

-----------

Coram: Fuad, V.P., Hunter & Penlington, JJ.A.

Date of hearing: 7 March 1990

Date of handing down judgment: 29 March 1990

------------------

JUDGMENT

------------------

Penlington, J.A.:

1. This is the judgment of the Court.

2. On the 30th March, 1988 WAN Yat Kwai (the accused) first appeared before the Magistrate's Court at Fanling, together with four other persons, charged with manufacturing heroin and possession of heroin for the purpose of unlawful trafficking. There were subsequent appearances before the Magistrate's Court in Fanling and eventually the matter was transferred to the Central Magistracy for the purpose of committal proceedings.

3. The accused applied for bail to the High Court on the 17th June, 1988 and, somewhat unusually in view of the nature of the charges, he was granted bail by Garcia, J. on terms that were not correctly reflected in the subsequent sealed order. That order states that

"the said Applicant be admitted to bail in the sum of HK$100,000.00 with 2 sureties of HK$250,000.00 each to be approved by Clerk of Court".

It seems clear from the record that in fact there was to be cash bail in each case, that is HK$100,000 cash from the accused and HK$250,000 cash from each of the sureties. We have no doubt that the fact that such a considerable amount of cash was to be provided was a major factor in the decision to grant bail even though the charge was one of manufacturing heroin. There was a further condition to bail and that was that the accused was to surrender his travel documents and to report to the Aberdeen Police Station twice daily between 9 a.m. to 1 p.m., and 3 p.m. to 6 p.m.

4. On the 21st June the accused duly produced his own HK$100,000 which was deposited by him and he entered into a recognizance to appear before the Magistrate's Court at Central when required and to comply with the other conditions of the bail. At the same time the two Applicants each also produced cash of HK$250,000 which was deposited as surety for the accused's compliance with his recognizance. On the 20th July the accused surrendered to his bail at the Central Magistracy and entered into a fresh recognizance to appear on the 3rd August 1988, the other conditions of his bail remaining the same. Again the Applicants also signed as sureties in respect of the cash sums which they had already produced.

5. On the 26th July, 1988 the accused failed to report to the Aberdeen Police Station and he did not appear in the Magistrate's Court on the 3rd August. He had absconded and was subsequently arrested in Thailand. It would seem that he had managed to leave Hong Kong with the aid of three police officers and they were all subsequently charged with the offence of conspiracy to pervert the course of justice. The accused was later convicted of that offence and also of the two offences with which he had been originally charged. That trial took place in December, 1988. The accused received a total sentence of 18 years' imprisonment.

6. Nothing apparently was done regarding the cash bail and sureties which had been put up by the accused and the Applicants until the 2nd May, 1989 when the Applicants' solicitors wrote to the trial judge asking for a return of the money. In reply to that a letter was sent by the Registrar fixing a date for the hearing of the application before Deputy Judge Corcoran. On that day a hearing was conducted in a very proper manner involving the Applicants themselves giving evidence and calling witnesses on their behalf. Evidence was given both as to steps which had been taken by the Applicants to ensure the compliance by the accused with the conditions of his bail, as to the manner in which they had obtained the HK$250,000 in each case and as to their present financial position. In a very careful reserved decision the trial judge refused the applications for the return of any of the cash surety which had been provided and ordered that it be forfeited.

7. Mr. McCoy, who appears for both Applicants, has very helpfully drawn our attention to various matters as regards the procedure, or perhaps we should say lack of procedure, relating to the forfeiture of cash sureties which have been provided as they were here. While he takes no point as to the failure to follow the procedure that has been laid down it would seem that this is a matter which does require legislative attention.

8. The question of the provision of cash bail is contained in Section 13AA of the Criminal Procedure Ordinance. That section was enacted following the decision in the United Kingdom in R v Harrow Justices, ex parte Morris [1972] 3 All E.R. 494 which held that there was no Common Law provision allowing for cash bail. The Section reads as follows:

"13AA.

There is no provision in this section as regards the procedure to be adopted for forfeiture of the amount so put up if the conditions are not met, particularly where the surety is not present in court when the accused person fails to appear. Section 45 of the Criminal Procedure Ordinance provides that if the accused person does not appear on the day appointed for trial a motion may be made on behalf of the prosecution that he and his sureties be called on their recognizances and in default of appearance that the same be estreated. It also provides that on any such application the court may make such order "as it may think just". It is clear here that the procedure under Section 45 was not followed. Mr. McCoy however relies on the section as showing that it was the clear intention of the legislature that forfeiture of cash sureties should not be made unless the court is of the view that it is just to do so. He also relies on Section 114 of the Criminal Procedure Ordinance, which was enacted at the same time as Section 13AA, as authority that the court also has power to reduce the amount which is to be forfeited to such sum as it thinks fit. Section 114(1)(d) provides that a court may make an order "in the case of a recognizance, discharging the recognizance or reducing the amount due thereunder."

9. The trial judge in his reasons for his decision to order forfeiture of the cash sureties has come to certain findings of fact which, with one exception, that relating to the first Applicant's money alleged to have been kept in a safe-deposit box, Mr. McCoy does not challenge. We are quite satisfied that all the findings of fact are supported by the evidence and were perfectly proper. What is however more difficult is to apply those findings to the statutory provisions which are far from complete and in the light of the relevant authorities which are by no means unanimous.

10. Each of the Applicants is a sister of the accused. It is clear that each has attained only modest educational standard and that in providing the very large sums of cash which they did to enable the release of their brother on bail they were acting with the sense of family loyalty which is such a strong feature of Chinese people. It was, however, unfortunately a grossly misplaced sense of loyalty in this case.

11. The first Applicant, WAN Shui Ying, is 38 years of age. She is married and has four children. She helps her husband in operating a cooked food stall and their total income is HK$10,000 per month. Their family expenses are about HK$5,000 per month. Her evidence was that the money she raised came from the following sources:

Both of those persons gave evidence relating to the loans and this was accepted by the trial judge. WAN Shui Ying herself is poorly educated and the judge found her to be of considerably less intelligence than the other Applicant. However he could not accept that anybody would borrow money on mortgage and then simply leave it in a safe-deposit box where it would earn no interest. However, as he said, the fact remains that she did supply the HK$80,000, from whatever source, and she did put up the remaining funds. WAN Shui Ying also said that if the money was forfeited it would be a disaster to her. She also will have to repay the two loans amounting to HK$100,000, she will lose her savings and her jewellery and with her large family she will have to work very long hours in order to repay these loans. She also said that while her brother was on bail before he absconded she kept reminding him to report to the Police Station and she also telephoned her sister, the other Applicant, to remind her to speak to her brother. She said that the accused had assured her he would not abscond and the possibility of his doing so had not really occurred to her.

12. So far as the second Applicant, WAN Shui Wan, is concerned she is 32 years of age, is married and has two children aged 9 and 7. She works in a cooked food stall and earns HK$4,500 per month. Her husband is a coolie and earns about HK$5,000. From this total of about HK$9,500 their living expenses are about HK$4,000 per month. At the time of the application to the trial judge WAN Shui Wan's husband was sick and she was not sure when he would be earning income again. She also had been advised that she should have an operation for a problem with her throat and this would cost about HK$7,000. So far as the HK$250,000 cash surety was concerned this was raised as follows:

Evidence was given by both YIU Wai Chun and WAN Shui Ling as to the loans they had made and there was evidence from the person who purchased the watches. The trial judge accepted that evidence, as he did WAN Shui Wan's evidence as to the money which came from her own resources. He also accepted her evidence that she telephoned her brother each day after his release on bail to remind him to report to the Police Station and she accompanied him each time he had to appear in court. She said that she had seen him two to three days prior to the 26th July, 1988 the day he failed to report. She said that if the HK$250,000 is forfeited it would cause her great hardship. She still has to pay off the loans and she will have to take two jobs in order to do so. When her husband has recovered he will have to work as a taxi-driver and she estimated it would take them about two years to repay the loans. She will have lost her entire savings and may have to postpone her operation.

13. So far as both Applicants are concerned the trial judge said that he was satisfied that both understood the nature of the documents they had signed and realised that the HK$250,000 in each case was liable to be forfeited if their brother did not comply with the conditions of the recognizance. He however also found that there was no evidence at all that either of the Applicants connived in or assisted the accused in his absconding.

14. The authorities as to the way in which the court should treat applications of this sort both here and the United Kingdom are by no means easy to reconcile. What seems to be the leading case in Hong Kong is that of R v KEUNG Cam Yuen (No 2) [1988] 1 HKLR 427. A judgment however delivered on the 26th May, 1986. There it was held that there was a heavy obligation upon a surety to ensure that the person for whom they have become responsible attended court. Sureties should normally be liable for money they had promised to pay or forfeit money paid into court unless there were circumstances relating either to means or culpability which made it fair and just that they should pay or forfeit a smaller sum. For the surety to establish that the money or part thereof should be returned to him necessitated the discharge of a heavy burden. At 429 Silke, J.A. said:

"Mr. Cheng tells us that he borrowed a large proportion of the sum for which he made himself responsible. He described himself as chief accountant on a salary of $5,000 per month. Speaking from myself it seems very clear that if a chief accountant on a salary of $5,000 had not deposited the sum of $250,000 cash it is unlikely that he would have been accepted a suretor in the first place and certainly his background and his means would have been gone into in some considerable detail."

He goes on to say:

"We have heard nothing to show that forfeiture of the sums involved would cause either of the sureties undue hardship. They knew or should have known what they were doing and the risks involved."

That is very clear dicta and as the facts there and in the case before us are by no means dissimilar must be difficult to distinguish. There has however been a subsequent decision R v Eng Bouy, Crim. App. No. 438 of 1986, on which Mr. McCoy heavily relies. There the Appellant was also related to the accused and was a married woman with a young family. She was persuaded to put up $100,000 cash bail which was estreated when the accused failed to appear in court. There also it seemed that the Appellant had borrowed part of the money which she had advanced. The court found that there had not been any indication of the reasons behind the trial judge's decision to forfeit the whole of the amount which had been put up. It considered that it was incumbent on the trial judge to give some reason why such an order of forfeiture should be made and they were satisfied that the Appellant, having made serious attempts to carry out her obligations under the order, was entitled to some relief and it was ordered that forfeiture should be only as to 50% of the amount which had been paid into court. The court referred to the decision in Keung Cam Yuen and also referred to the English case of R v Waltham Forest Justices, ex parte Parfrey [1980] Crim.App.R. (S) 208 where Donaldson, L.J. referred to the very serious obligation which laid on a surety to be fully satisfied that he can meet the liability which will arise if the accused person does not surrender to his bail. That authority was also considered in R v Uxbridge Justices, ex parte Heward-Mills [1983] 1 All E.R. 530. At 535 McCullough, J. said:

"Having summarised all the passages in the cases where this topic falls to be considered as a matter of principle as far as I know and as far as the research done by counsel has shown I would draw together the more important principles to be derived from the authorities as follows.

Having considered the evidence that was before him McCullough, J. concluded that the justices had failed to consider the evidence relating to the means of the surety and the matter was referred back to be re-considered in the light of that guidance. This authority was further considered in R v York Crown Court, ex parte Coleman and How (1988) 86 Cr.App.R. 151. We must confess to finding the dicta of May, L.J. in that case not easy to follow but in a concurring judgment Roch, J. said:

"I respectfully adopt the test stated by McCullough, J. in R v Uxbridge Justices, ex parte Heward-Mills."

He goes on:

"The second comment that I would make is this. An aspect, and in my view an important aspect, of the taking of a recognizance from a surety who will normally be related to or at least close to the defendant who is being granted bail is to create pressure or incentive for the defendant to surrender to his bail when required to do so. If it were to become the practice that a surety who could show that he was in no way to blame for non-attendance of the defendant at court would ipso facto avoid the estreatment of his recognizance then the value of taking of recognizances from sureties would be seriously reduced. In my opinion such a result would be most undesirable."

15. We are of the view that where cash surety is provided the instances where that should not be forfeited in its entirety when the conditions are not met must be rare indeed. There is no point in considering what might be circumstances which would justify such a course but in cases of very great hardship a different order clearly is possible. As was said in Keung Cam Yuen, when cash is provided the court would not normally go into the background of the surety and his/her means to pay the amount in the event of the accused person absconding. We do not consider that in this case those very exceptional circumstances exist. We were concerned because of the decision in R v Eng Bouy which appears, at first sight, to be contrary to that view but there clearly the trial judge had not considered at all the conduct of the surety in endeavouring to see that the defendant complied with his reporting conditions. That failure meant that his decision was subject to review and the court was entitled to take a different view of it. That is not the case here. The judge in this case has carefully considered all relevant facts and authorities. We are satisfied that this is not a matter where he has erred in the principles to be applied or that his decision is clearly wrong. It is true that the forfeiture of the amount put up by each of the Applicants will cause them hardship but it must be clearly understood that when persons put up sums of money as cash bail the chances of recovering any of that in the event of the defendant absconding are slim indeed.

16. For these reasons this application is refused.

Representation:

G.J.X. McCoy (Chan & Kong) for Appellants

Miss V.A. Hartstein, S.C.C., for Respondent