HKSAR v. WONG CHO SHING

CACC 38/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 38 OF 2017

(ON APPEAL FROM DCCC NO. 980 OF 2015)

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D E C I S I O N

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1.  The applicant was convicted after trial on 14 February 2017 by District Court Judge Dufton, together with six co-defendants, of an assault occasioning actual bodily harm to Tsang Kin Chiu on 15 October 2014. The applicant was stipulated as the 1^st defendant on the charge sheet and was referred to by the judge as D1. On 17 February 2017, the applicant, together with his co-defendants, was sentenced to 2 years’ imprisonment for that offence. On that day, the applicant filed Form XI with the Court, by which he gave notice of his application for leave to appeal against conviction and sentence.

Grounds of appeal against conviction and sentence

2.  On 20 June 2017, those representing the applicant filed with the Court Perfected Grounds of Appeal against Conviction and Sentence.

Application for bail pending appeal

3.  By a summons filed with the Court on 30 June 2017, the applicant seeks the grant of bail pending the determination of his appeal by the Court of Appeal.

4.  In a letter filed with the Court on 3 July 2017, Ms Clara Ma, for the respondent, informed the Court:

“ Without conceding that the grounds of appeal against conviction and sentence by D1 are reasonably arguable, the Respondent submits that there is force in the argument that, for the purpose of the bail pending appeal by D1, the application should be disposed of in the same manner as that of D2, D4 and D7 in that if bail is not granted, there is a risk that D1 may have served a sentence longer than he should have served.

Purely on this basis, the Respondent will not object (to) D1’s application for bail pending appeal.”

Submissions in support of the application

5.  In written submissions filed with the Court on behalf of the applicant earlier today Mr Grossman SC informed the Court that the application for bail pending appeal was advanced on the “… ‘time basis’ that his appeal against sentence is reasonably arguable but that there is a risk by the time his appeal is heard he would have served most (if not all) of his sentence.”

6.  Mr Grossman invited the Court to note that the applicant had been sentenced on the same basis as the 2^nd, 4^th and 7^th applicants, namely on the basis of a joint enterprise and that Yeung VP had granted bail pending appeal to those applicants on 28 June 2017.  Mr Grossman prayed in aid of his application passages in the reasons for decision of Yeung VP in granting those applicants bail pending appeal.

7.  In granting those applications, Yeung VP said of their applications for leave to appeal against sentence:

“ The maximum sentence for an offence of assault occasioning actual bodily harm is three years’ imprisonment (s 39 of Offences against the Person Ordinance, Cap 212, Laws of Hong Kong).

Without in any way underestimating the seriousness of what the applicants and his colleagues did, it is, in my view, highly arguable that the 2½ year starting point, 6 months off the maximum sentence, adopted by the judge is manifestly excessive and that is significantly lower starting point should be adopted.”

8.  Of the processing of the applications for leave to appeal, Yeung VP said:

“ The application for leave to appeal has yet to be set down for hearing before a single judge of the Court of Appeal. Indeed, three other defendants had not even filed their perfected grounds of appeal.”

9.  Pausing there, that remains the position today in respect of those three applicants.  By a letter dated 15 June 2017, the Registrar of the High Court directed those applicants to file perfected grounds of appeal “as soon as possible.”  In reply, by a letter dated 20 June 2017, solicitors representing those three applicants informed the Court that, although they would “attempt our best” to comply with the directions, difficulties lay in doing so given that different teams of counsel, both senior and junior counsel, had been instructed “very recently” for the appeal.  Nevertheless, the dilatoriness of other applicants in filing perfected grounds of appeal is no reason why this applicant’s application for leave to appeal should not be listed before the single judge sooner rather than later.

10.  Yeung VP went on to note:

“ Bearing in mind the number of defendants, the length of the trial, the length of the judgment and the voluminous transcripts and documents involved, it is unlikely that the appeal proper can be dealt with within the next 6 to 9 months by which time, the applicants would have completed a major part, if not the entirety of their 2 years’ imprisonment.

Unless granted bail pending appeal, there is also risk that the applicants would have served a sentence longer than they need to serve even if their convictions are maintained.”

11.  I am satisfied that the respondent’s decision not to oppose the application for the grant of bail pending appeal on the basis articulated in their letter was entirely realistic and most sensible.

Conclusion

12.  In all the circumstances, I am satisfied that it is appropriate to grant the applicant bail pending the hearing of his appeal.  The applicant is granted bail on his undertaking to comply with the directions of the Court to attend any and all hearings of his application for leave to appeal against conviction and sentence; his deposit of $50,000 with the Court; his wife, as his surety, depositing $50,000 with the Court; his surrender of all his travel documents, save his identity card; his undertaking not to leave Hong Kong, save with the leave of the Court; and his undertaking to reside at the address supplied to the Court.