THE QUEEN v. LAU KWOK HUNG

MP No. 1703 of 1991

HEADNOTE

Bail - further delay after refusal of bail - violation of rights under the Bill of Rights Ordinance - time spent in custody weighed against length of sentence.

MP No. 1703 of 1991

IN THE SUPREME COURT OF HONG KONG

CRIMINAL JURISDICTION

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. On July 11th last year, I refused this applicant bail. I heard substantial argument with a large number of affidavits being placed before me. He had been arrested on 20th May and charged on 22nd May 1991 with a number of credit card offences.

2. I am trying this case next February and apparently this is the first time this type of case has been tried in the High Court, as it raises an important matter and deals with the utilization of hotel staff in Hong Kong for the purpose of supplying list of names of customers staying at hotels so that forged credit cards can be brought into being. It is therefore, as all crimes are in High Court, a serious offence.

3. When the Defendant was charged, bail was refused and he was kept in ICAC custody. At the time I heard the application, I reserved my judgment and I gave a full written judgment which is MP 1703 of 1991.

4. I held that I was then satisfied that there were proper grounds for denying bail. I was of the opinion that, although the period of time after which he had been arrested, was reasonable, the date of trial in September 1992 was unreasonable and would be in breach of Article 5 (3) of the Bill of Rights.

"...Anyone arrested ... on a trial criminal charge ..... shall be entitled to within a reasonable time or to release. It shall not be the general rule, that persons awaiting trial shall be detained in custody ....."

5. I was told at that time the sole reason for this substantial delay was a shortage of High Court judges. The Crown were ready to proceed with their case, within a short period of time, as indeed were the Defence. I pointed out in that judgment that it is wrong for delay to occur; it causes injustice to everybody, both to the Defendant and to Prosecution Witnesses who may forget. I referred to a number of Canadian cases where it has been said that the lack of institutional resources cannot be employed to justify continuing unreasonable postponement of trials. I said Hong Kong runs a risk of criticism if an adequate supply of judges cannot be found to deal with the backlog of serious criminal trials. The Judiciary and, of course, the Administration, must be vigilant to ensure that the provisions of the Bill of Rights are not rendered worthless.

6. The Defendant continued in custody and there was listed another application for bail before Mr. Justice Leonard in July of this year.

7. It had been early intimated, although it was not brought to my attention, that the Registrar of the High Court had not fixed September 1992, but February 1993 for the trial. I had retained further bail applications by this Defendant to myself. Furthermore, I am told from the Bar, and I accept, that the advice of Mr. Henry Litton, Q.C., as he then was, was being sought on this matter.

8. The application now comes before me and I am the trial judge. I am acquainted with all the papers in this case. The extra delay is some 5 months. Clearly, the applicant is entitled to ask the court to consider his bail application as there is a change of circumstances, Mr. McMahon submits "it is only another 4 months," but, in my judgment, that is the wrong approach here. I, first of all, have to consider whether or not this man's rights are now being violated, in that his trial is not being held within a reasonable period of time.

9. 17 months have now passed since his arrest. In my judgment, his rights are clearly being violated. I have no doubt that there is unreasonable delay and he is entitled to be released. However, I must also consider the public interest. I recited in my earlier judgment that there were other factors to be taken into account when dealing with the release of a person. It may well be, for example, that a man has caused the delay substantially from his own fault, or that he is such a danger to society that he should never be allowed out of custody.

10. The evidence now placed before me is the same as 15 months' ago. Mr. McMahon puts forward two matters. He says there is a likelihood the Defendant would interfere with witnesses and he is likely to abscond. As at July 1991, 15 months' ago, I was satisfied that there was a potential interference with witnesses and it was said this Defendant had important triad connections and could easily obtain forged documents.

11. However, nothing has happened since July 1991. Some 15 months have passed. No evidence is placed before me that there has been any further interference directly or indirectly with any witness.

12. It goes without saying that everyone may abscond. Conditions can be imposed and an important factor is the length of time a person has to be kept in custody compared with the length of sentence that might be passed.

13. This is not a case of armed robbery of a jewellery shop, for example, where a sentence of up to 25 years may be passed, nor is it a dangerous drugs case. This is obviously a serious matter and I do not speculate as to what the likely sentence would be. Most of these cases have been dealt with in the District Court where sentences of approximately 4 to 5 years are passed. This, the Crown says, is more serious. The Defendant, the trial having set down for 6 weeks, will have been in custody for nearly 2 years, which is equivalent to a 3 years' sentence and I, therefore, must consider the length of sentence and the delay which is being caused. Although there is risk he may abscond, in my judgment, this is a classic case where the principle of ensuring the Bill of Rights ordinance is upheld by the judiciary is far more important than the particular case before the court. I am of the view that his rights under the Ordinance are now violated and he is entitled to be freed. I will grant him bail. The conditions of bail can be a matter of further evidence or submissions, but I would in principle require HK$500,000 cash bail and a surety of a similar amount.