RE SOUTH KOWLOON MAGISTRACY COURT Criminal Case No K-4535 of 1991

HEADNOTE

Bail - applications since the Bill of Rights - grounds for refusal - Article 5(3) Bill of Rights.

IN THE SUPREME COURT OF HONG KONG

CRIMINAL JURISDICTION

MISCELLANEOUS PROCEEDINGS NO. 1703 OF 1991

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JUDGMENT

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1. This is an application for bail by a man currently detained in Lai Chi Kok. I heard the application in chambers but I am giving my judgment in open court as it raises an important point of public importance with regard to bail applications and the newly enacted Bill of Rights.  I have not named the defendant as he will ultimately be tried, and nothing said here is indicative in any way of the result of the trial, nor will I deal in detail with the contents of the many affidavits filed in support of and in opposition to the grant of bail.

2. The relevant chronology is as follows: The defendant was arrested on 20th May 1991, charged on 22nd May with serious credit card offences. He has been remanded several times. On 21st June an application for bail was refused by Mr. Justice Hooper. He is likely to be committed for trial in August and the trial is expected to last four weeks with twenty witnesses for the prosecution. On the current information, the likely date of trial in the High Court may be September 1992 although it may not occur until later.

3. When the matter was before Mr. Justice Hooper, affidavits from the Crown had only just been received a short time before the hearing and only a passing reference was made to the Bill of Rights. I am mindful of the provisions of section 12B of the Criminal Procedure Ordinance. Mr. Matthews has submitted that fresh evidence permits him to make this application and that the full impact of the Bill of Rights was not then recognized. I have therefore decided to hear this application although I will naturally pay the greatest respect to the decision of Mr. Justice Hooper.

4. The granting or withholding of bail has always been determined by magistrates and judges on the basis of certain well recognized general principles, namely, the nature of the charge, the likelihood of the defendant absconding, the strength of the prosecution case, potential interference with witnesses and any other relevant factors which will influence the Court's decision.

5. The Bill of Rights became part of the law of Hong Kong on 8th June 1991. It has brought about a fundamental difference of approach to bail applications. Article 5(3) says - which is dealing with the liberty and security of person:-

"Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment."

It can be seen, therefore, that now there is a presumption that bail should be granted and that any defendant is entitled to trial within a reasonable time. Delay in the trial of criminal charges should be a matter for public concern. It is a trite observation that justice delayed is justice denied.

6. Justice is even-handed and true justice requires not only that the innocent should be acquitted but that the guilty should be convicted. It is not only the defendant who can be prejudiced by delay; prosecution witnesses may forget what occurred, they may emigrate or they may become so apprehensive about giving evidence that they appear less creditable. It is a matter of vital importance that criminal trials take place speedily and with no undue delay. On occasions the prosecution may require time for the gathering of evidence, the charges may be complex involving expert witnesses. Sometimes the defence requires considerable time for the preparation of their defence. For this type of delay, it is not only justifiable but necessary.

7. The position in Hong Kong for criminal trials in the High Court should now be a matter of public anxiety. Delays of up to fifteen months from committal to trial are common. This may mean a person being kept in custody for eighteen months or so from arrest or even longer. I am informed that the sole reason for these long delays is the shortage of High Court judges. This situation is now serious, otherwise provisions in the Bill of Rights will be rendered worthless. In the rapidly changing public awareness of democracy in Hong Kong, the Bill of Rights must be seen to be a protection, not only of an individual's rights but a public recognition that delays in the administration of justice must not be tolerated.

8. I would gratefully adopt the words of Mr. Justice Cory who delivered the majority view of the Supreme Court of Canada consisting of nine judges in October 1990 on a landmark decision on the Canadian Charter of Rights. This is similar to the Bill of Rights recently adopted now in Hong Kong. That learned judge said of the section dealing in the Charter of Rights and Freedoms, similar to Article at page 474:-

9. As far as this instant case is concerned, the only reason given to me for a delay in the hearing of his trial is the shortage of High Court judges. In Canada which, as I have said, has a similar Charter of Rights and Freedoms, it has been said that the lack of institutional resources cannot be employed to justify a continuing unreasonable postponement of trials, and Canada indeed is a vast country with different climates and different populations in the provinces. In my judgment, Hong Kong runs the risk of criticism if an adequate supply of judges cannot be found to deal with the backlog of serious criminal trials. The Judiciary must be vigilant to ensure that the provisions of the Bill of Rights are not rendered a paper tiger.

10. The importance of recognizing delay in trials was emphasized by the Privy Council in Bell v. D.P.P. 1985 Appeal case 937, and the Lords of Appeal approved the general principles as set out by the Supreme Court of United States in Barker v Wingo. It can be seen, therefore, that delay has been recognized in major democratic societies to be a matter of serious hindrance to the proper administration of justice.

11. Although, in my judgment, the likely delay in this case is in breach of the Bill of Rights Article 5, it is still my duty to ascertain whether bail should be granted. I must consider the question of delay from three points of view. First, from the defendant's: He would be kept in custody for some eighteen months for an offence for which he may well be acquitted.  He obviously will consider it an unreasonable delay to be kept in prison for that period of time. Secondly, from the Crown's point of view: The delay is unreasonable because they tell me that their evidence is marshalled and they are ready to proceed within a short space of time. Thirdly, from the public point of view: The position in Hong Kong appears to be similar to that in Canada as was said in R. v. Lamothe in March of last year in the Quebec Court of Appeal, 58 CCC 530, BauDovin, J.A. said at p. 541:-

I should have indicated that the Bill of Rights Article 11 states that:-

"Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law."

That presumption, of course, goes throughout the criminal process; from the time of charge to the end of the trial everyone is presumed innocent until proven guilty.

12. Nevertheless, before any judge considers the release of a defendant on an interim basis, he should also have regard to three other factors:-

13. First, the nature of the offence charged.

14. Secondly, whether releasing the defendant may endanger the public.

15. Thirdly, whether his release could affect the process of the trial, either by preventing the prosecution presenting their evidence in a fair and uninfluenced manner, or by failing to appear at the time of the trial.

16. In my judgment, these three factors are of public importance, and should rank alongside the provisions of Article 5(3). Although, therefore, there is now a presumption in favour of granting bail, courts are still entitled, if cogent evidence is placed before them on some, or all, of the three factors I have set out above, to refuse bail.

17. I have expressed my concern at the lengthy delay which will be caused to this trial and although Article 5(3) says:-

            "A person shall be entitled to trial within a reasonable time, or to release."

18. I must still have regard to the factors I have just set out, namely the nature of the offence, whether the public are endangered in any way by the defendant being allowed his freedom, and whether his release adversely affects the presentation of the prosecution case, or he fails to appear at his trial.

19. I have, in this case, had regard to the many affidavits which I have not recited, and on which I have heard submissions in Chambers. I do consider here that there is an undue delay, and that this man will not be brought to trial within a reasonable time, and therefore Article 5(3) of the Bill of Rights will not be fulfilled, nevertheless, having examined in detail, as I have, the evidence which has been produced, I am satisfied that, from a public point of view, bail in this case should be refused. I therefore refuse bail.