LEUNG YIU FAI v. SECRETARY FOR JUSTICE

HCAL 569/2017

[2018] HKCFI 87

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 569 OF 2017

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J U D G M E N T

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1.  The applicant seeks by way of judicial review the following relief:

(a)  an order of certiorari to bring up and quash a decision made by the Judge of the District Court (the interested party) on 10 March 2014 (first decision) to estreat the bail money of the applicant without first hearing the applicant’s explanation and a declaration that the first decision is illegal or irrational, and/or that it was made with procedural irregularity or that it is a decision which frustrates the legitimate expectation of the applicant; and

(b)  an order of certiorari to bring up and quash a decision made by the District Judge on 30 December 2015 (second decision) to reject the applicant’s application for the return of the bail money, and the declaration that the second decision is illegal or irrational, and/or that it was made with procedural irregularity or that it is a decision which frustrates the legitimate expectation of the applicant.

2.  An affirmation was filed by the applicant on 31 August 2017 and a reply affidavit by Ms Chan Shuk Yi, Bertha was filed on behalf of the respondent on 26 March 2018.

BACKGROUND

3.  Briefly, the applicant was granted bail by the learned judge and when he failed to present himself at the appointed time for verdict, his bail money was estreated by the trial judge after being informed by the Prosecution that he had left Hong Kong and no record of his returning to Hong Kong and Defence Counsel said neither he nor the applicant’s family could contact him.  Subsequently, when the applicant surrendered himself to the court and informed the learned judge that he had been involuntarily detained in mainland China, the learned judge took the view that he no longer was seized of the matter regarding the estreatment of bail money and considered himself to be functus officio, the applicant was therefore not given an opportunity to be heard on the merits in relation to the estreatment of his bail money.  The applicant pursued for the return of his bail money through various means and finally made this judicial review application.

PRELIMINARY ISSUES

4.  The respondent did not take issue with the preliminary issues canvassed by counsel for the applicant in his skeleton submissions mainly that the applicant had a direct pecuniary interest in the bail money, and therefore, satisfy the requirements of Order 53 rule 3(7) of the Rules of the High Court, i.e. that the High Court has supervisory jurisdiction to judicially review the decisions of the District Court including all inferior courts and tribunals.

5.  The decision to confiscate bail money is subject to judicial review[1], as it does not fall within the definition of “sentence” under section 80 of the Criminal Procedure Ordinance (“CPO”), Cap 221 and therefore fall outside the ambit of the appellate jurisdiction of the Court of Appeal under section 80G of Cap 221.  Therefore, judicial review is the only available process to overturn a decision for confiscation of the bail money.

6.  The respondent, very properly, did not take issue with the question of delay as from the history of the case leading up to this judicial review, the process had been particularly difficult for the applicant who was acting in person through no fault of his own.

SUBSTANTIVE ISSUES

7.  Substantive issues are as follows:

(1)  what factors or considerations should the learned judge have taken into account prior to exercising his discretion to forfeit the bail money in the applicant’s absence;

(2)  illegality;

(3)  procedural unfairness/natural justice; and

(4)  irrationality and disproportionality.

DISCUSSION

Relevant factors and considerations

8.  It is not in dispute that the applicant had failed to appear in court on 7 March 2014 for the learned judge’s verdict.  The matter was adjourned to 10 March 2014 whereupon the prosecution informed the court that the applicant had left Hong Kong via Lo Wu on 25 February 2014 at 23:40 hours and have not returned.  The applicant’s legal representatives also informed the court that neither they nor the applicant’s family could locate the applicant.  The learned judge proceeded to announce his verdict and sentenced the accused to three years’ imprisonment and also forfeited the applicant’s bail money.

9.  The applicant returned to Hong Kong on 17 March 2014 and was arrested and brought to court on 18 March 2014. On that day, the applicant appeared in person and informed the court that he had been arrested in the mainland on 26 February 2014 and was in detention when he was supposed to appear in court on 7 March and 10 March 2014.  Because of his detention, he was unable to contact anyone in Hong Kong. The learned judge proceeded to inform the applicant that he had already been sentenced to three years’ imprisonment and his bail money has been forfeited and that he may apply for legal aid to appeal.

10.  Subsequently the applicant had sought legal aid and wrote a letter to the learned judge asking for the return of his bail money. On 21 September 2015, the learned judge caused a letter to be sent to the Department of Justice and asked if they had any written submissions on whether the learned judge was functus officio in relation to the bail money and whether the learned judge still had jurisdiction to deal with this matter.

11.  The Department of Justice by way of written submissions submitted to the learned judge that he was indeed functus and that since the applicant had already lodged his appeal against conviction and sentence that the question of bail estreatment can be dealt with in the Court of Appeal.

12.  And in the same submissions, counsel for the Department of Justice referred the learned judge to the cases of Secretary for Justice v Yuen Lit Ping [1999] 1 HKC 476 and HKSAR v Chu Kin Yuen, Bartholomen, CACC 374/2006.

13.  The learned judge on 5 October 2015 caused a letter to be sent to the applicant informing the applicant that he could make submissions through his legal representative on the question of whether the forfeiture of bail money is a purely administrative matter as per Secretary for Justice v Yuen Lit Ping [1997] 1 HKC 476 at p 480 para C to D. The letter invited the applicant to reply within 14 days as to whether he wished to have his lawyer represent him on this application.  Subsequently, not having heard from the applicant, by letter dated 30 December 2015, the applicant was informed that the learned judge had decided that he was functus on this matter of the returning of the bail money.

14.  Against that factual background, I now turn to the legal basis for the forfeiture of bail money in section 9M(1) of the CPO, which reads:

“(1) If a person admitted to bail fails, without reasonable cause, to surrender to custody as shall have been appointed by a court, a court may, whether or not that person has been convicted of an offence under section 9L(1), order that the whole or part of any —

a. recognizance of bail taken from a surety under section 9D(3)(a); or

b. sum of money deposited with the court under section 9D(3)(b)(viii),

for the purpose of securing his surrender to custody shall be forfeited to the Government.”

15.  Mr Ng, counsel for the applicant, submitted that it is clear from section 9M(1) above that the court in exercising the power of forfeiture must consider whether there was “reasonable cause” on the applicant’s part.  He further submitted under the Common Law, the court should also consider other factors in particular the fault or blameworthiness of the applicant.  Mr Ng also submitted that the learned judge should have also considered, inter alia, the means of this applicant and his culpability.  And he submitted that a failure to do this is fatal to the validity of the order.

16.  Mr Tang on behalf of the Department of Justice submitted that there is no mandatory requirement that a court must adjourn the decision on forfeiture until such time that the person at fault is before the court.  Mr Tang submitted that although procedural fairness may appear to be applicable, it is, however, sometimes “impracticable” to comply with fairness requirement (see De Smith’s Judicial Review 7th Edition para 8‑002).  Mr Tang submitted that it had been impracticable for the court to insist when the applicant failed to appear that he must be heard before the discretion under section 9M of the CPO can be exercised.  In this case, the applicant had disappeared after leaving for the mainland and nobody knew when he will be back.  Mr Tang also submitted that since the court’s discretion under section 9M of the CPO does not depend on a person’s conviction, it implies that even if the absconded applicant does not show up in court and no conviction has been entered against him, the court can still forfeit his cash bail, thus it is clear that the court may exercise discretion under section 9M of the CPO in the absence of the applicant.

17.  Mr Tang most helpfully in his submissions traced the statutory history of section 9M which was originally enacted in the Criminal Procedure (Amendment) Bill 1993 (“1993 Bill”).  This was introduced to implement the recommendations as set out in the report of the Law Reform Commission of Hong Kong, published in December 1989, concerning the reform of the law of bail in criminal proceedings (“LRC Report”).  In the report, it pointed out that “forfeiture” and “estreatment” is a two‑stage process.  Stage one was the forfeiture stage at which it is declared that the sum had been forfeited and stage two was the enforcement stage at which the sum or part of it was actually recovered.  The report summarised the existing law governing forfeiture/estreatment of recognizance and cash bail given by an applicant and his surety and pointed out that there was a “mechanism” for the court to discharge or reduce the recognizance subsequent to the stage when the court declared forfeiture of the same on the applicant’s non‑appearance.  Thus, the LRC report proposed that the “Code should clearly distinguish the two stages in the enforcement of recognizance – first, at which the sum is declared or has in law become forfeited and the later stage at which the sum or part of it is actually recovered.”  It went on to say that “the Code should discard the existing highly unsatisfactory statutory provisions and replace them with a set procedure which would provide for:-

(i)  proof of default;

(ii)  a declaration of forfeiture; and

(iii)  discretion as to partial or total enforcement (incorporating an opportunity for sureties to show cause why estreatment should not follow in a particular case).”

18.  Mr Tang submitted that by virtue of section 9D(3)(a) of the CPO, after the 1993 Bill was passed, the practice of requiring a recognizance of bail to be taken from a defendant had been abolished.  It can also be seen that the practice of requiring a recognizance to be taken from a surety has been retained, and the “two‑stage process” is still applicable when deciding whether to forfeit the recognizance taken from a surety and this can be seen from the fact that the following sections were retained after the 1993 Bill was passed:-

a.  section 20(6) of the Magistrate’s Ordinance, Cap 227; and

b.  sections 45, 110‑114 of the CPO.

But Mr Tang pointed out it remains unclear as to whether this “two‑stage process” is also applicable to forfeiture of the cash bail deposited by a defendant or his sureties and whether the same process should apply to both recognizances and cash bail.  Mr Tang said in his submissions that in order to serve the legislative objectives better both recognizance and cash bail are in fact different means to achieve the same end, i.e. both are simply guarantee/reassurance put forth to secure the defendant’s appearance in court.

19.  On the issue whether the learned judge had failed to take into account relevant considerations when he made the first decision to estreat the bail money of the applicant, Mr Tang submitted that when the court considered whether the applicant had failed to surrender to custody was “without reasonable cause”, the relevant considerations to be taken into account must depend on the factual circumstances of the case. Mr Tang in reply to the applicant’s contention that prior to the court exercising its discretion to forfeit the bail money, it has to consider three considerations: (i) fault or blameworthiness of the applicant; (ii) want of means on the applicant’s part; and (iii) culpability.  He agreed that the learned judge had failed to take into account these considerations when reaching his first decision.

20.  Mr Tang submitted that section 9M of the CPO does not contain any reference as to what considerations the court should take into account when deciding whether there was “reasonable cause” and secondly that the learned judge was entitled to exercise his discretion under section 9M of the CPO in the applicant’s absence.  Therefore, the three suggested considerations above cannot be considered relevant because at the time when the first decision was made, the court only knew the applicant had left Hong Kong and not returned, so therefore the argument advanced on behalf of the applicant on this should fail.  Mr Tang pointed out that on 10 March 2014, the learned judge was informed by the prosecution that the applicant had not been admitted to any hospital in Hong Kong nor detained by any law enforcement agencies in Hong Kong and that according to the immigration records, the applicant had left Hong Kong via Lo Wu Control Point on 25 February 2014 and that he had not returned to Hong Kong, also the court was informed by the applicant’s lawyer that the family of the applicant was not able to contact the applicant.  Therefore, under the circumstances, the learned judge had cogent evidence before him at the time suggesting that the applicant’s absence was without “reasonable cause”.  Therefore, Mr Tang submitted that the learned judge was entitled to exercise his discretion on 10 March 2014 to forfeit the applicant’s cash bail in full.

Illegality

21.  Very briefly, here, I would like to mention Mr Ng’s submissions that the first decision of the learned judge was illegal relying on a passage he cited from the Crown Court Index 2017.  It was stated that it was illegal for the learned judge to not return the cash bail to the applicant.  As Mr Tang correctly pointed out that was against the statutory framework in the United Kingdom under the “Bail Act 1976” and in brief there is no similar statutory regime in Hong Kong and therefore it is not applicable to Hong Kong.

22.  Also, it is to be noted that Mr Ng complained that the learned judge had failed to give reasons for his first decision and Mr Tang fairly pointed out this was a very clear case of abscondment as can be seen from the transcript of the hearing on 10 March 2014.  Before the learned judge gave his first decision, he had properly made enquiries from both the prosecution and the defence as to the applicant’s absence.  And therefore there was no reason or necessity for the learned judge to give reasons in such circumstances.

Functus officio

23.  It is clear that the learned judge was indeed functus at the time when he made the second decision and was correct in arriving at his decision.  As Mr Tang pointed out, the learned judge had indeed invited submissions from the applicant’s legal representative prior to making his second decision and no question of blame can be placed at his door.  Therefore, it is clear that the only remedy, following the case of HKSAR v Chan Yuen Yee Carrie[2], is for the applicant to apply for judicial review.  I must also at this stage point out that Mr Ng submitted that the Court of Appeal in the Carrie Chan case had noted in the postscript to that judgment that both parties agreed in the Carrie Chan case that the trial judge was wrong to make the confiscation order and also that the process of making it was unfair, and so Mr Ng submitted that it is so in this case.  The facts in the Carrie Chan case were different from the present case because Carrie Chan having failed to appear for trial, a warrant of arrest was ordered and on the following day, Carrie Chan surrendered to the court and said she could not attend trial because she had suffered a head injury at 4:00am on the day she was supposed to appear in court and went to a hospital at 5:24am and was only discharged in the afternoon of that first day of trial.  The learned judge in the case of Carrie Chan rejected her explanation and said she had failed to show reasonable cause for failing to appear and confiscated her bail money.  In the hearing of the appeal, Carrie Chan did produce the medical record supporting her contention that she was admitted to Kwong Wah Hospital and stayed until 6:45pm and so would have been unable to attend court on that day.  And the Court of Appeal pointed out that it was incumbent on the trial judge to check on the veracity of what Carrie Chan had said prior to confiscating her bail money.

24.  In the present case, the applicant did not appear and the learned judge did make enquiries from both the prosecution and the defence and the only evidence before him was that the applicant had left Hong Kong and never returned and none of the applicant’s family members could contact him, so the facts of the cases are different.  The learned judge could only act upon what was before him at that time to find if there was reasonable cause for the absence of the applicant and there was no such evidence before him, and therefore his first decision was made properly.

25.  In Mr Ng’s reply to the respondent’s submissions, Mr Ng submitted that the applicant is asserting that the second decision, not to re‑open the first decision, was a breach of natural justice and that the learned judge had failed to take into account the applicant’s detention in the mainland when deciding whether or not to return the bail money.  That, since the respondent submitted that the legislative intent of section 9M of the CPO was to deter parties from absconding and punish for such absconding, therefore the court had to consider the blameworthiness and culpability of the applicant when making his first decision.  Mr Ng submitted in relation to the point whether the trial judge’s decision not to return the bail money was unlawful prayed in aid the case of Carrie Chan in that the Court of Appeal decided that it was a judicial review matter and therefore Mr Ng asserted that means it is an administrative decision and the learned judge did have jurisdiction to deal with it at the time he made his second decision.  The learned judge therefore was wrong when he said he was functus when he was not and Mr Ng relied on the case of Secretary for Justice v Yuen Lit Ping[3] to say that for purely administrative matter, the learned judge had power to re‑open the matter.  Finally, Mr Ng submitted that the decision to confiscate the entire sum of bail money was disproportionate to punish the applicant who was not voluntarily absconding from the trial, therefore it was a disproportionate decision.

26.  I do not agree with Mr Ng’s submissions that the first decision of the learned judge was purely administrative matter and may be re‑opened at the time when he made his second decision.  The Court of Appeal noted in para 59 of the Carrie Chan case:

“59. ……There are numerous grounds that can support an application for judicial review to correct the decisions made by magistrates or District Judges. They include:

1. an error of jurisdiction;

2. a failure to observe judicial fairness, such as bias;

3. an error of law on the face of the record;

4. illegality;

5. irrationality; and

6. procedural impropriety.

(see Archbold Hong Kong 2016 Edition p 679, para 7‑58)”

27.  I do not agree with Mr Ng that the Court of Appeal in the Carrie Chan case by saying that the confiscation of bail money is subject to judicial review meant that it was a purely “administrative” decision and it is apparent from the paragraph cited above that it was not so.

28.  I also agree with Mr Tang that by the time of second decision, the learned judge was functus in relation to his first decision and as the Court of Appeal had noted the only avenue open to the applicant was through judicial review.  Further, it is my view that the forfeiture of the entire bail money is not disproportionate as at the time when the first decision was made.  It was clear that the applicant had voluntarily absented himself, not only from court but from Hong Kong.

29.  At the end of the day, I cannot say therefore that the learned judge was in error in forfeiting the bail money. I have therefore no hesitation in dismissing this application to quash the first and second decisions of the learned judge and to dismiss the application for an order of mandamus for the return of the bail money.

Costs Order

30.  Costs to be paid by Applicant to the Respondent, to be taxed if not agreed.