HKSAR v. CHAN CHI KIN

CACC 542/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 542 OF 2011

(ON APPEAL FROM DCCC NO. 536 OF 2011)

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BETWEEN

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DECISION

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Hon. Yuen JA:

1.  This is the Applicant’s 2^nd application for bail pending appeal.

2.  He had been charged with one charge of blackmail and one charge of claiming to be a member of a triad society. 

3.  On 16 December 2011 Deputy DJ Woodcock found him guilty as charged and he was sentenced to a term of imprisonment of 3 years. 

4.  Essentially the prosecution case was that on 14 March 2011 PW1 was approached at his bar in Tsuen Wan by the Applicant who introduced himself as “Ah Kin” of “Shing Yee” and demanded a protection fee of $3,000 and 200 bottles of beer to treat his “brothers” (it was an admitted fact that “Tsuen Wan Shing Yee” in triad jargon meant the Wo Shing Yee triad society in the Tsuen Wan district).  Shortly after the Applicant made that demand, police arrived and arrested him.  The police had been alerted by PW1 earlier that day pursuant to an approach made to him by some other persons a few days previously.  

5.  The Applicant did not give evidence at trial.  His counsel suggested to PW1 that the conversation related to the Applicant’s proposal to be PW1's agent.  This was denied by PW1.  The Applicant called one defence witness Mr Leung who said that the Applicant was his agent, but he was not present at the bar that night.

6.  In the Reasons for Verdict, the trial judge reminded herself of the applicable legal principles and accepted PW1's evidence as to what the Applicant said.  She found that the CCTV footage supported PW1's version of events and any discrepancies were minor.  She found that Mr Leung’s evidence was not relevant as he was not present at the bar that evening. 

7.  The Applicant has applied for leave to appeal against conviction.  In a document dated 22 December 2011, he set out 9 grounds of appeal.

8.  The Applicant first applied for bail pending appeal before Cheung JA on 28 February 2012.  Cheung JA refused the application for reasons set out in Reasons for Judgment handed down on 5 March 2012.

9.  On 5 March 2012 the Applicant issued a fresh application for bail pending appeal.  In a document appended to his affirmation supporting this new application, 3 new grounds of appeal were set out. 

-  The 1^st ground was that the judge had refused to allow him to bring a television from home to show the CCTV footage. 

-  The 2^nd ground was that his counsel had advised him that since it had been proved that PW1's evidence was untrue, it would be a waste of time for him (the Applicant) to give evidence.  It is also said that his counsel had told the Applicant’s friend that he would be acquitted. 

-  The 3^rd ground was that he had 5 potential witnesses to whom subpoenas had been issued.  He said his counsel considered the evidence of 2 to be irrelevant, and 2 did not turn up.  He says the 5^th potential witness could have proved that the statement PW1 made at the police station was untrue. 

10.  At the hearing this morning, the Applicant has added that he considers that trial counsel had been grossly incompetent in advising him not to give evidence and in not calling the potential defence witnesses. 

11.  The court has an unfettered discretion in deciding whether to grant bail pending appeal. But it is usually only granted where it appears prima facie that the appeal is likely to be successful.  The burden is on the Applicant.   

12.  Bail pending appeal may also be granted if there is a risk that the sentence will have been served by the time the appeal is heardbut this does not apply in the present case in view of the length of the sentence.  

13.  Having considered the Applicant’s fresh grounds of appeal and heard his oral submissions, I am not persuaded that he has at this stage shown prima facie that his appeal is likely to be successful.  At this stage there is only his bare allegation of what he had been advised by counsel, and even if counsel had indeed proffered his opinion on whether the Applicant should go in the witness box, depending on the circumstances that is not necessarily indicative of gross incompetence. 

14.  The application is accordingly dismissed.