HKSAR v. CHAN YUEN YEE CARRIE

[English Translation – 英譯本]
CACC 211/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 211 OF 2015

(ON APPEAL FROM DCCC 142/2015)

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REASONS FOR JUDGMENT

Hon Yeung V-P (giving the reasons for judgment of the Court):

Background

1.  The appellant, Chan Yuen Yee Carrie, entered on 13 January 2015 a room and a locker room on the 7^th floor of a hotel in North Point from where she took away 5 towels engraved with the name of the hotel and an electric kettle. The properties were worth about $330. She was stopped by hotel staff when she was leaving with them. The hotel staff recovered from the paper page the appellant carried the aforesaid towels and electric kettle. The police was called.

2.  As a result, the appellant was charged with one count of burglary and was finally arranged to stand trial in the District Court on 13 May 2015. Before the trial, she was granted bail. One of the bail conditions was she had to pay cash bail in the sum of $40,000.

3.  The appellant did not show up for trial on 13 May 2015 as scheduled. But both the counsel and the solicitor the Legal Aid Department assigned to represent her attended court.

4.  The trial judge, Deputy District Court Judge Marco Li, ordered a warrant of arrest be issued for the arrest of the appellant after hearing the submission of the counsel representing her.

5.  In the afternoon of the following day, that was 14 May 2015, the appellant surrendered herself to court. She explained to the court that she was unable to attend court at the time as had been appointed because she had to go to the Accident and Emergency Unit of the Kwong Wah Hospital to seek medical attention in the small hours of the trial day.

6.  Counsel representing her produced to the court an attendance note from the Accident and Emergency Unit of Kwong Wah Hospital showing that the appellant was in the A&E Unit of the Hospital at 5:24am of 13 May 2015.

7.  Counsel further informed the court that the appellant was hit on the head by a falling cabinet at home at 4am on 13 May 2015 which made her feel discomfort and nauseous. As a result, her friend accompanied her to go to Kwong Wah Hospital to seek treatment.

8.  According to the appellant, as she had head injury and was nauseous, doctor of the A&E of the Hospital admitted her into a ward for observation and only allowed her to leave sometime after 4pm of the same day. She went on to say that as she had lost her identity card, she was not able to obtain the relevant medical report to support her story.

9.  She said she did not to go a police station to surrender herself as she was legally advised to because after she had left the Hospital, she had to go back home to look after her two children and also she still felt discomfort. However, she had already arrived at the court on the following day before the court sat. She urged the court to accept that she had no intention to abscond.

10.  The trial judge clearly had doubt about her claim that she had lost her identity card but yet could still receive treatment in Kwong Wah Hospital. He pointed out that before treatment was given, patients had to pay a fee first, and for patients who were non-Hong Kong residents, the fee required was much higher. Counsel for the appellant immediately explained to the trial judge that she only lost her identity card during her hospitalization.

11.  The trial judge did not accept the appellant’s explanation. He pointed out that the attendance note that the appellant submitted only showed that she had been to the A&E Unit at 5:24am on 13 May 2015 and her condition was assessed as semi-urgent. But she did not have any evidence to show that she had to stay in the Hospital and therefore could not attend court at the time as had been appointed for trial as a result.

12.  The trial judge further said that he found it even harder to accept her claim that she only lost her identity card during hospitalization and therefore could not obtain a medical report.

13.  The trial judge took the view that the appellant had failed to show reasonable cause for not attending court at the time as had been appointed and ordered that her bail be revoked and the $40,000 bail money be confiscated in full (“the confiscation order”). The confiscation order was made pursuant to section 9M(1)(b) of the Criminal Procedure Ordinance (“the Ordinance”).

14.  On 11 June 2015, the appellant pleaded guilty to burglary before another Deputy District Court Judge and was sentenced to 22 months’ imprisonment. Aggrieved with the sentence, she applied for leave to appeal against sentence. On 30 November 2015, she informed the court that she abandoned the said application for leave to appeal against sentence and the application was dismissed.

15.  Aggrieved by the confiscation order, the appellant took out a notice to apply to the Court of Appeal to appeal out of time against it. On 16 December 2015, a single judge of the Court of Appeal allowed her application to appeal out of time against the confiscation order. On 19 February 2016, the appellant applied further to the court to treat her abandonment to appeal against sentence filed on 30 November 2015 as a nullity so that she could re-commence proceedings to appeal against the sentence.

16.  The appellant was represented by Mr Wong Hay Yiu of counsel in her appeal against the confiscation order and was acting in person in the application to treat the notice of abandonment as a nullity.

Application to treat the notice of abandonment as a nullity

17.  When a defendant who has been sentenced clearly indicates that he will abandon an application to appeal against sentence and the application is dismissed as a result, unless he can prove that when he abandoned the appeal, he did not know the nature of the notice of abandonment and the consequences that come with his signing of the notice, he has no right to bring it up again to ask the court to deal with his application afresh. (see HKSAR v Law Kam Fai and another [2006] 2 HKLRD 879, HKSAR v Ip Wai Ho, Micky [2015] 5 HKLRD 567, HKSAR v Lai Siu Cheung [2005] 1 HKLRD 1, HKSAR v Luo Shui Ji [2007] 3 HKLRD 114). That a defendant changes his mind after abandoning an application to appeal against sentence is not a ground in support of an application to treat the notice of abandonment as a nullity.

18.  The appellant stated clearly in the Notice to Abandon an Application for Leave to Appeal filed on 30 November 2015:

“I, Chan Yuen Yee Carrie, 303400, decide to cancel the appeal (against sentence) after careful consideration.”

In her application to the court to treat her notice of abandonment as a nullity on 19 February 2016, she merely stated:

“Because I have new ground now so I apply to the court afresh to appeal (against sentence).”

19.  The appellant did not say that when she signed the notice of abandonment, she did not know the nature of the notice and the consequences that her signing on it would lead to. She decided to abandon the appeal only after careful consideration. That she claimed she had new ground to show that the sentence was excessive is not a reason to support her application to treat her abandonment as a nullity. There is no basis for this court to treat the notice she signed to abandon the application for leave to appeal against sentence as a nullity. Her application to ask the court to treat the said notice as a nullity is dismissed. This court needs only consider her application to appeal against the confiscation order.

The appeal against the confiscation order

20.  In order to strengthen her appeal, the appellant requested that this court should admit some medical reports as new evidence.

21.  She maintained that she was admitted to the Hospital on 13 May 2015 because she was ill and therefore was unable to attend court for trial at the time as had been appointed. The new evidence that she produced proved that she had to stay in the Hospital for observation on 13 May 2015 until 3pm due to head injuries. She later returned to the Hospital where she stayed in the observation ward until 6:45pm the same day.

22.  According to section 9M(1) of the Ordinance, if a person who had been admitted to bail fails, without reasonable cause, to surrender to custody as shall have been appointed by a court, a court may order that the whole or part of the bail money be forfeited to the Government.

23.  According to the Ordinance, a court does not necessarily have to forfeit the bail money of a defendant who fails to surrender to custody as shall have been appointed. The court has the discretion to decide whether or not to forfeit the bail money and the amount to be forfeited should a forfeiture order be made.

24.  During the trial, the appellant failed to produce a medical report and further claimed that the failure to obtain a medical report was because she had lost her identity card. This claim was not very credible. This court can understand why the trial judge did not accept her explanation but he should have given her the chance to prove her claim before deciding whether or not to forfeit her bail money.

25.  The undisputed evidence showed that the appellant did go to Kwong Wah Hospital to seek medical attention on 13 May 2015. In view of the congested situation of the A&E Unit and the symptoms the appellant claimed she had, it is highly likely that her claim that the doctor kept her in a ward for observation until the afternoon is true. If she was determined to abscond, she would not have surrendered herself to court on the following day. As a matter of fact, the new evidence the appellant submitted showed proved that she indeed had to stay in the Hospital for observation which made her unable to attend court in the morning of 13 May 2015 for the hearing.

26.  We cannot overlook the fact that as far as the background of the appellant is concerned, $40,000 is a considerable amount of money, and the forfeiture of that sum of money may cause great hardship to both the appellant and her family.

27.  The court cannot forfeit a huge sum of a defendant’s bail money lightly. As far as the background of the present case is concerned, the trial judge should at least have checked the veracity of the appellant’s claim and given her the chance to prove if the explanation she gave on why she was unable to attend court at the time as had been appointed was true or not.

28.  Even if it was revealed after checking that the explanation she gave was not true, in so far as the background of this case is concerned, the court did not necessarily have to forfeit the $40,000 bail money in full. In fact, the new evidence the appellant produced proved that her explanation was true. In our view, the confiscation order the trial judge made was inappropriate and without fair process. It should be set aside. Ms Catherine Ko, Acting Senior Assistant Director of Public Prosecutions, acting for the respondent, shared our view in this regard.

29.  But the court must resolve the question of whether we have the jurisdiction to deal with appeals against confiscation orders first.

30.  Mr Wong, counsel for the appellant, pointed out that there has been much dispute regarding whether the confiscation of bail money is a civil or criminal cause or matter. Mr Wong agreed that in R v Southampton Justices, Ex Parte Green [1976] Q.B. 11, when considering the question of whether the forfeiture of bail money was a “criminal cause or matter” within the meaning of the statutory provisions, the English Court of Appeal had reservation. It took the view that the nature of a recognizance was a bond, and failure to perform the bond would only lead to a civil debt. Therefore, the English Court of Appeal directed that from then on, all appeals regarding forfeiture of bail money should be heard by the Court of Appeal in the exercise of its civil jurisdiction. However, Mr Wong pointed out at the same time that the decision of Ex Parte Green (supra) had been challenged in a number of other cases.

31.  Mr Wong submitted that the test of whether a matter was a criminal cause or matter should lie in the fact of whether the proceedings behind it were criminal or non-criminal. He pointed out that the Court of Appeal referred to Amand v Home Secretary and Minister of Defence of Royal Netherlands Government [1943] AC 147 in AG v Alick, Au Shui Yuen [1992] 1 HKLR 88 and held that if a person had the chance of being found guilty or sentenced in the end, it was clearly a criminal proceeding, even if the order being challenged was per se not clearly a criminal order. Mr Wong urged this court to accept that the confiscation order was ancillary to the appellant pleading guilty to the offence of burglary; therefore, the confiscation order was a criminal cause or matter.

32.  Mr Wong stressed that a number of decided cases adopted the above criterion, and when dealing with the relevant question, the court should adopt an approach that is both flexible and reasonable.

33.  But Mr Wong at the same time accepted that even if confiscation of bail money was a criminal cause or matter, this did not mean that the Court of Appeal had jurisdiction over appeals against confiscation of bail money for the reason that the criminal jurisdiction of the Court of Appeal came from the High Court Ordinance, and the Court of Appeal had to deal with appeals from the Court of First Instance or the District Court according to Part IV of the Ordinance. Mr Wong submitted that according to the relevant Ordinance, the Court of Appeal had criminal jurisdiction to deal with appeals against confiscation of bail money.

34.  He cited HKSAR v Chai Man Fong CACC 433/1997 to support his argument. In that case, the Court of Appeal held that the defendant had the right to appeal against a forfeiture order made pursuant to section 102 of the Ordinance although the property subject to the order had nothing to do with the conviction entered against the defendant. Mr Wong stressed that even if no one was found guilty of any offence, the court could still make a forfeiture order pursuant to section 102 of the Ordinance and the Court of Appeal also held that in the aforesaid situation, the Court of Appeal had jurisdiction to deal with appeals against forfeiture orders.

35.  Mr Wong submitted that the “sentence” referred to in section 80 of the Ordinance covered any order that a court made when dealing with an offender; therefore, a confiscation order is a form of “sentence”.

36.  He stressed that the present case did not involve bail money paid by a surety to guarantee that the defendant would attend court at the time as had been appointed. Rather, it was bail money the defendant paid. Mr Wong took the view that the two were different. That seeking to recover the former was a civil cause did not mean that the defendant’s application for the return of the bail money was also a civil cause.

Position of the respondent

37.  Ms Ko acting for the respondent referred the court to several cases, including R v Eng Bouy CACC 438/1986, Ex Parte Green (supra), Wan Shui Ying & another v AG CACV 145/1989, to support her position that proceedings to confiscate bail money should be regarded as a civil and not a criminal cause or matter. She, however, at the same time accepted that it was not the case that she did not have reservation regarding the above position.

38.  In any event, Ms Ko submitted that the Court of Appeal only had jurisdiction to deal with a “sentence” imposed on a defendant convicted of an offence. Ms Ko pointed out that since the confiscation order was made pursuant to section 9M of the Ordinance, it showed that the appellant’s failure to surrender to custody as have been appointed by the court bore no direct relationship with the offence of burglary that she later pleaded guilty to. Further, the confiscation order was not the sentence imposed on her for the burglary but the punishment she had to face for breaching the undertaking to show up for trial at the time as had been appointed. Ms Ko stressed that even if the charge of burglary the appellant was being prosecuted for was dropped at that time, the confiscation order was still valid. Therefore, the confiscation order could not be within the scope of the “sentence” referred to in section 80 of the Ordinance.

39.  Ms Ko also pointed out that even though rejecting the application for costs made by a person acquitted of a charge was part and parcel of criminal proceedings and inseparable from the trial in question, the Court of Appeal still held in R v Wong Hing Yuk [1989] 1 HKLR 251 that the Court of Appeal did not have the jurisdiction to deal with an appeal against a costs order for the reason that the said costs order was not made on the basis of a conviction entered against the defendant. Ms Ko pointed out that the aforesaid point of view was approved in R v Hayden [1975] 2 All ER 558.

40.  Ms Ko agreed that the confiscation order was not reasonable and should not have been made. If the appellant could follow the proper procedure to apply for the return of the $40,000 bail money, the respondent (that is, the prosecution) not only would not oppose, it would even try its best to cooperate.

Discussion

41.  The Court of Appeal made clear in Eng Bouy and Wan Shui Ying & another (supra) that decisions to confiscate the bail money of a surety was a civil matter and matters relating to confiscating the bail money of a surety should be proceeded with in the form of civil proceedings. However, none of the appellants in those cases were defendants in criminal cases.  Those appellants only paid the bail money in the capacity of a surety to guarantee that the defendants in the criminal cases in question would attend court for their trials at the time as had been appointed. In the end, the defendants absconded and the bail money the sureties had paid was confiscated as a result.

42.  When a surety pays bail money to guarantee that a defendant will attend court for his trial, the surety does so to the court in the form of a bond. If the defendant fails to attend court for trial, it means that the surety has not performed the undertaking in the bond. In such a situation, it is not difficult to understand why the court held that the proceedings to confiscate the bail money the surety had paid were a civil cause or matter.

43.  However, the proceedings involved in the present case are the District Judge making an order to confiscate the bail money that the defendant had paid as she failed to turn up for her trial at the time that had been appointed. The confiscation order was part and parcel of the criminal prosecution made against the appellant and inseparable from the offence she was charged with. In our view, the confiscation order should be a criminal cause or matter.

44.  However, in our view, whether or not a confiscation order is a criminal or civil cause or matter has nothing to do with the question that arises in this appeal for the reason that this question only bears on the judgments or orders of the Court of First Instance (see section 13(3)(aa) of the High Court Ordinance). But this appeal was not from the Court of First Instance; it was from the District Court.

45.  The Court of Appeal is established by statute and does not possess any inherent power. The jurisdiction of the Court of Appeal must come from the relevant statutory provisions which include the High Court Ordinance and/or the Ordinance. Section 13(3) of the High Court Ordinance provides:

The criminal jurisdiction of the Court of Appeal shall consist of-

(a) appeals from the Court of First Instance or District Court under Part IV of the Criminal Procedure Ordinance (Cap 221);

(aa) appeals from a judgment or order of the Court of First Instance given or made in the exercise of the powers conferred on it under section 21I(1) and relating to a criminal cause or matter;

(b) the consideration of questions of law reserved under section 81(1) of the Criminal Procedure Ordinance (Cap 221);

(c) the consideration of-

(i) applications by the Secretary for Justice for the review of any sentence under section 81A(1) of the Criminal Procedure Ordinance (Cap 221);

(ii) references by the Secretary for Justice of questions of law under section 81D of the Criminal Procedure Ordinance (Cap 221);

(d) appeals by way of case stated from the District Court under section 84 of the District Court Ordinance (Cap 336); and

(e) any other jurisdiction conferred on it by any law.

46.  Part IV of the Ordinance covers provisions that deal with appeals, questions of law reserved and referred and review. Section 83G provides:

“A person who has been convicted of an offence on indictment may appeal to the Court of Appeal against any sentence (not being a sentence fixed by law) passed on him for the offence, whether passed on his conviction or in subsequent proceedings.”

And section 80 of the Ordinance defines “sentence” as “any order made by a court when dealing with an offender”.

47.  The confiscation order was made because the appellant failed to attend court for trial at the time as had been appointed. This bore no direct relationship with the burglary offence that she was charged with and was not a sentence imposed on the appellant for that offence. Nor was it an order the court made when dealing with her for the burglary that she had committed.

48.  The confiscation order fails to meet the stipulations in respect of an appeal against sentence referred to in section 83C of the Ordinance.

49.  Section 83I(3) of the Ordinance provides:

“On an appeal against sentence the Court of Appeal, if it considers that the appellant should be sentenced differently for an offence for which he was dealt with by the court below, may-

(a) quash any sentence or order which is the subject of the appeal; and

(b) in place of it pass such sentence… as it thinks appropriate for the case…”

50.  We have considered the question of whether the confiscation order was a sentence imposed on the appellant for “an offence for which (s)he was dealt with by the court” as required by section 83I(3) of the Ordinance. In considering the question, we bear in mind that a person already commits a criminal offence if he fails to surrender to custody as shall have been appointed by a court. Section 9L of the Ordinance provides:

“(1) A person admitted to bail who, without reasonable cause, fails to surrender to custody as shall have been appointed by a court, commits an offence.

(2) A person admitted to bail who, having reasonable cause therefor, has failed to surrender to custody at such time as shall have been appointed by a court, fails to so surrender as soon after that time as is reasonably practicable, commits an offence.”

51.  We cannot overlook the fact that section 83I of the Ordinance is only “supplemental provisions as to appeal against sentence” appended to section 83G of the Ordinance. “An offence” referred to in section 83I(3) of the Ordinance does not refer generally to any offence but the offence for which the defendant had been convicted for as referred to in section 83G of the Ordinance.

52.  We have also carefully analyzed the case of Chai Man Fong that Mr Wong had submitted. In that case, the court only ordered that the properties found on the person of the appellant be confiscated after he had pleaded guilty to a number of offences. The said confiscation order was one of the orders the court made when dealing with him after he had been convicted of the offences and therefore met the requirement of sections 80 and 83G of the Ordinance.

53.  Mr Wong stressed that the orders that section 102 of the Ordinance covered included those that were made in the absence of any defendant being convicted of any offence. The observation of Mr Wong is correct. But in the aforesaid scenario, neither is the confiscation order in question a “sentence” referred to in section 80 of the Ordinance nor can anyone aggrieved by the said confiscation order appeal against the said confiscation order pursuant to section 83G of the Ordinance unless the appeal satisfies the requirements set out in section 13(3)(aa) of the High Court Ordinance.

54.  We find that Chan Man Fong does not support the appellant’s arguments.

55.  As a matter of fact, the question involved in the present appeal had been before the English Court of Appeal in R v Thayne [1970] 1 Q.B. 141. The appellant, charged with theft of a postal parcel, was released on bail on his own recognizance for £25. He failed to surrender to custody according to the bail conditions and was arrested. Upon being found guilty of the offence of theft, the judge sentenced him to 18 months of imprisonment and ordered that the £25 for which he entered into bail on his own recognizance be confiscated. He was to serve a consecutive term of 6 months’ imprisonment should he fail to pay the £25. After studying section 9 of the Criminal Appeal Act 1968, the English Court of Appeal held that it was bound by the provision when dealing with appeals against sentence. In other words, the Court could only deal with the sentence that was passed for the offence that the appellant was indicted for and convicted of. Since the order the judge made against the appellant for failing to surrender to custody according to the bail conditions was not a “sentence”, the Court of Appeal did not have jurisdiction to deal with the appeal against the said order. Lord Parker C.J. made the following comments in page 142 of the judgment:

“The order for six months’ imprisonment consecutive which was only in connection with the failure to surrender to bail, was not passed on him for any offence whatever.  It is true that section 50(1) gives a very wide definition of sentence; it provides: ‘In this Act, “sentence”, in relation to an offence, includes any order made by a court when dealing with an offender…’  But wide as those words may be, once they are written into section 9 in place of the word ‘sentence’, the fact remains that the limiting words remain, namely, that the sentence must be passed or his for the offence.  In those circumstances, odd as it may seem, this court has no jurisdiction whatever to interfere with that part of the recorder’s order.”

56.  We should mention in passing that sections 9 and 50 of the English Criminal Appeal Act 1968 are basically the same as sections 83G and 80 of the Ordinance. Section 83I(3) of the Ordinance is also the same as section 11(3) of the English Criminal Appeal Act 1968.

57.  We concur with the decision in Thayne (supra). We do not have jurisdiction to deal with the appellant’s appeal to overturn the confiscation order. We therefore also have to dismiss her appeal against the confiscation order.

Postscript

58.  The circumstances of the present case are unusual. Both parties agreed that the trial judge was wrong to make the confiscation order and also that the process of making it was unfair. Acting for the respondent (the prosecution), Ms Ko even stated expressly that not only would the prosecution not oppose the application as long as the appellant followed the appropriate procedure to apply for setting aside of the confiscation order, it would even cooperate actively with her in the application.

59.  The opinions we express are of course not binding on the appellant, but we take the view that she can apply for judicial review to overturn the confiscation order. 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).

60.  We are of the view that the appellant can base her application on some of the aforesaid grounds to apply for judicial review, asking the court to overturn the confiscation order in order to get back the $40,000 bail money that had been confiscated.