Wong Yeung Ng v. The Secretary for Justice

CACV000161/1998

CACV 161/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 161 OF 1998

(ON APPEAL FROM HCMP 407 OF 1998)

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Coram: Hon Liu, J.A. in Court

Date of Hearing: 3 July 1998

Date of Judgment: 3 July 1998

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J U D G M E N T

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Liu, J.A.:

1. This is an unusual case. The language used and the action taken by an otherwise responsible paper were unprecedented. On admitted facts or virtually admitted facts, the prisoner was sentenced. An appeal will be lodged. The intended appellant seeks bail pending appeal. The sentencing process took considerable time. Sentencing would seem to be uncharted in this area for Hong Kong and it is, therefore, understandable why the intended appellant and those, he has instructed, firmly believe that the length of his sentence is debatable, in addition to the other legal challenges to conviction.

2. Counsel directs the attention of this court to what was said by the full bench about uncertainties, which I propose to quote in extenso:

"We are fortunate in having a relatively free hand to do that in view of the facts that (a) the common law offence of scandalising the court has never been considered judicially in Hong Kong; and (b) there are widely differing approaches in other common law jurisdictions."

3. This court is presented with a table of comparable cases in five jurisdictions with the usual thoroughness of Mr Cheng Huan, S.C. Cases in common law jurisdiction were also cited for my reference. Counsel for the intended appellant has persuaded me that there are, indeed, serious matters which would affect the sentence and conviction for the Court of Appeal's consideration.

4. If bail were withheld, the sentence would, most probably, all be served by the time when the intended appeal is concluded. There is no known risk of the applicant absconding. Further offences will not be committed pending appeal on bail. The Secretary for Justice has not, through counsel, suggested any other features objectionable to this application for bail. The offered terms would seem to be agreeable to the Secretary for Justice. The Secretary for Justice has taken a neutral stance and this court is told that in fact, this application is not resisted.

5. In view of all these matters, this court would feel disposed to grant the application so that the applicant would be bailed pending his intended appeal. I propose to adjourn the matter for half an hour so that the parties could discuss the terms of the bail proposed to be granted.

(B Liu)

Justice of Appeal of
the Court of Appeal of
the High Court

Representation:

Mr Cheng Huan, S.C., Jason Pow & Clement Lee inst'd by M/s Chan & Partners for Appellant.

Mr Johannes Chan for Department of Justice for Respondent.