HKSAR v. Hashimi Habib Halim

HCMP 995/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 995 OF 2015

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DECISION
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1.This is now the seventh application for bail in the same proceedings. On each occasion, subsequent to the first hearing at this court, there has been no material difference in the grounds which the applicant has advanced for being granted bail.

2.In short, applications have been made as follows:

Ÿ on 29 April 2015 before M Poon J;

Ÿ on 7 May 2015 before S D’Almada Remedios DHCJ;

Ÿ on 14 May 2015 before A Wong J;

Ÿ on 22 May before S T Poon DHCJ;

Ÿ on 1 June beforeCampbell-Moffat DHCJ, SC;

Ÿ and on 7 July 2015, just seven days ago, before A Pang J. 

3.At the very least, the last five applications have been contrary to the spirit of section 9G(11) (b) of the Criminal Procedure Ordinance, Cap 221.

4.I am first of all going to read a later section of the ordinance, section 9J(1), which deals with the review of a refusal of bail or conditions of bail.  This reads:

“(1) Where a District Judge or magistrate has refused to admit a person to bail or has so admitted a person subject to any condition, that person may in the case of a refusal, apply to a judge to be admitted to bail or in the case of an admission to bail subject to any condition apply to a judge to be admitted to bail without bail being subject to that condition.”

5.I now go back to section 9G(11), and although it is in fact only (11)(b) which applies, I propose to read the whole section:

“If at any hearing the court refuses to admit an accused person to bail the court shall, at each subsequent hearing while the accused remains in custody, consider the question of whether or not he ought to be admitted to bail and-

(a) on the first occasion after that upon which the court first refused to so admit, the court shall hear any argument as to fact or law put to it in support of his admission to bail, whether or not it has previously heard that argument;

(b) on the second or any subsequent occasion after that upon which the court first refused to so admit, the court need not hear any argument as to fact or law put to it in support of his admission to bail, if it has previously heard that argument.”

6.The matter is clearly covered also by Archbold Hong Kong 2015 in which at paragraph 3-30 on page 178 the text reads as follows:

“Paragraph (a) of section 9G(11) provides that at the first hearing after that at which the court decided not to grant the defendant bail, he or she may support an application for bail with any argument as to fact or law whether or not that argument has been advanced previously. Whereas, paragraph (b) of section 9G(11) provides that at hearings subsequent to the first hearing after the hearing at which the court refused bail, the court need not hear arguments as to fact or law which it has heard previously. The section limits the number of times a defendant can advance the same reasons in support of an application for bail. ”

7.HKSAR v Siu Yat Leung [2002] 2 HKLRD 147 is then referred to where the point was made that the test under that section ensures that access to the court is not a “revolving door”, and adopts the words used by Deputy Judge Jones in R v Ng Yiu Fai [1992] 2 HKLR 122 at page 125, that the test was:

“...a sensible and necessary adjunct to a coherent legal system, which would otherwise be prey to a proliferation of speculative bail applications on issues already decided.”

8.With those words in mind, which I shall adopt in these proceedings, this will now be the last time that the court may be asked to entertain any ground previously advanced by this defendant. This is, of course, subject to any contrary indication given by a judge of this court in any subsequent proceedings.

9.In fact, the applicant should not have been permitted to have advanced identical, or almost identical, bail applications on the last five occasions, and I am afraid I blame the Department of Justice as much as this court for having permitted the “proliferation of speculative bail applications on issues already decided”. 

10.Bail is refused in this case on this occasion for exactly the same reasons as have been given on all previous six occasions as well, no doubt, as in the original hearing in the Magistrates’ Court. 

11.I should add that although the defendant has constantly indicated that he is perfectly content to conduct the proceedings in English, of which he has demonstrated himself to be very conversant indeed, he is still being given the services of an interpreter which the defendant does not require. I have no idea why this is so when it has been made perfectly plain on the record that this defendant requires no interpreter.  The costs of these proceedings are mounting and this must be the last application to be entertained by this court for bail on the same grounds. 

Mr Gary Leung, SPP (Ag) of the Department of Justice, for the respondent 

Applicant appeared in person