XCHRX R. v. LEE HOI KWONG

1992, No. 229
(Criminal)

H E A D N O T E

Bail pending appeal - R. v. Watton (1978) 68 Cr App R 293 considered - R. v. Tam Chung-sing [1988] 2 HKLR 214 followed - R. v. Tam Chung-wah [1976] HKLR 831 explained.

IN THE COURT OF APPEAL

1992, No. 229
(Criminal)

IN THE MATTER of section 83R of the Criminal Procedure Ordinance, Chapter 221, Laws of Hong Kong.
and
IN THE MATTER of an application by the 3rd Appellant that he be admitted to bail pending appeal.

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J U D G M E N T

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Bokhary JA:

1. This is the second application for bail pending appeal made by this applicant. His first application was dismissed by the Chief Justice on August 14 last year. A second application is permissible by reason of a change in circumstances since the first one. For reasons which I feel unable, on such material as I have at this stage, to say can be laid at this applicant's door, the appeal, it is now known, will take very much longer to come on for hearing than was anticipated at the time of the first application.

2. The applicant is a banker in his early fifties. He is a married man with three children. And he has lived in Hong Kong since 1974.

3. A man of previous good character, he was on June 2 last year convicted in the High Court on one count of offering an advantage to a public servant, contrary to section 4(1)(a) of the Prevention of Bribery Ordinance, Cap. 201.

4. He was on the following day sentenced to seven years' imprisonment.

5. His appeal is against conviction and sentence.

6. Applications for bail pending appeal are normally heard by a single judge of this Court. The Crown had invited me to refer this application to a bench of three. That invitation - to which I did not accede - was made on this basis. Although Cons VP had in R v. Tam Chung-sing [1988] 2 HKLR 214 granted bail pending appeal on the basis of the time which the applicants there would have spent in custody by the time their appeals were determined if they were not admitted to bail pending appeal, the same learned judge had, some years earlier, in R. v. Tam Chung-wah [1976] HKLR 831 at 833, said:-

"It will usually be necessary to show that the chances of a successful appeal are high and that substantial injustice will be done by retaining the applicant in custody."

7. I do not think that that statement is irreconcilable with what the learned judge did in the later case. But, in any event, it is to be noted that between those two Hong Kong cases the Court of Appeal in England had inR. v. Watton (1979) 68 Cr App R 293 at p.296 adopted this formulation:-

"... bail is granted only where it appears prima facie that the appeal is likely to be successful or where there is a risk that the sentence will have been served by the time the appeal is heard."

8. That statement reflects what is now the general approach of this Court as well as that one, which are by statute empowered - and therefore in truth duty bound - to admit appellants to bail where that course is the "fit" one to follow.

9. The discretion is unfettered since the relevant section, section 83R of the Criminal Procedure Ordinance, Cap. 221, provides quite simply that:-

"The Court of Appeal may, if it thinks fit, on the application of an appellant, admit him to bail pending the determination of his appeal."

10. There is no warrant for any general approach more restrictive than the one contained in the formulation adopted in R. v. Watton (supra).

11. The cases in which bail pending appeal has been allowed on the "time" basis are not ones in which the appellants have disavowed having appeals which are highly likely to be successful. They have asserted that to be the effect of the advice which they have received, but have recognised the impracticability of demonstrating that at the bail pending appeal stage. That is the present applicant's stance. Therefore, the practice has developed under which another basis, the "time" basis, provides the foundation for the application.

12. Providing the foundation for an application is of course not the same as dictating its success. It simply provides the court with a proper footing on which to grant bail pending appeal if, in all the circumstances, there is no reason why bail should be withheld even though the applicant is a convicted person. And it is to be noted that it is precisely in the sort of the case where it is impracticable to demonstrate that the appeal is highly likely to succeed, because the volume of material which would have to be deployed to do that is so great and perhaps not even available in its entirety yet, that the logistics are likely to give rise to a "time" basis for the application.

13. The law evolves in a practical setting; and the Court's approach is a practical one. It is true that when one concentrates on the second basis, that is to say the "time" basis, leaving the first basis, that is to say the "strength of the appeal" basis, there is a possibility that people might get the erroneous impression that a convicted person is applying for bail even though he accepts that he does not have an appeal which is highly likely to succeed. But, as I have indicated, that is not necessarily the situation at all. Of course, if in any given case the material were such that the applicant ought to be able to demonstrate fairly shortly that he had an appeal highly likely to succeed if he did indeed have one, and he nevertheless refrains from making any attempt to do so or his attempt to do so fails, then the position would be very different.

14. While discussing the relevant principles, I should mention again something which arose when I was dealing with the question of bail pending appeal for this applicant's co-accused, Mr Oscar Lai, I had occasion then, on the 14th of last month, to make the point that it is not to be supposed that bail pending appeal was inevitable or even highly likely in all cases of short sentences notwithstanding that the time before which an appeal can be determined may well approximate the length of the sentence concerned.

15. I also said on that occasion that these matters cannot be looked at on a purely mathematical basis. It is true that when the "time" basis of these applications are discussed, one often considers the percentage of the sentence which would have been served by the time the appeal is determined. That is a convenient way of dealing with the matter and enables one to look it from yet another angle; and these matters have to be looked at from different angles in order to arrive at the proper result. But percentages are not the be all or end all of the matter.

16. That can be illustrated by these examples. If a man received a sentence of ten months' imprisonment and had to spend nine months in custody pending the determination of his appeal, that would mean a ninety per cent wait. If a man received a sentence of ten years' imprisonment and had to spend eight years in custody pending the determination of his appeal, that would mean an eighty per cent wait. I do not think that anybody would suggest that the ninety per cent wait amounting to nine months would be more serious than the eighty per cent wait amounting to eight years.

17. When I dealt with Mr Lai's application for bail pending appeal, I said this:-

"If he is not allowed bail pending appeal, the applicant will have been in custody for three years by then."

By "then" I was of course referring to the time when his appeal was likely to be determined. I continued:-

"That is to be viewed in the context of four years and eight months, which is what seven years comes down to with full remission; and there is no reason to believe that the applicant will not earn full remission."

18. The present applicant's position is different, in that, unlike Mr Lai, he did not spend 15 months in custody before he was convicted and sentenced. Therefore, his position, unless there is something special, is different from Mr Lai's.

19. But the matter does not end there. This applicant has an appeal against sentence which, choosing my words carefully, I would call "promising". I use that term without coming to anything remotely resembling a conclusion as to what I would actually do if I were sitting on his appeal against sentence. All I can say at this stage is that it appears to me to be promising. He received the maximum sentence for the offence of which he was convicted. Of his co-accused at the trial, Mr Lai was his solicitor in a commercial crime case against him, and Mr Eddie Soh was his counsel in that case. The count on which the present applicant was convicted together with Mr Lai and Mr Soh involved - sadly and shamefully - a bribe paid to a very senior lawyer in the Attorney General's Chambers. Mr Lai was also convicted on another four corruption counts. Mr Soh was also convicted on another six such counts. On each count Mr Lai and Mr Soh received the maximum sentence of seven years' imprisonment. But all of their sentences were ordered to be served concurrently, so that each of them received only seven years in all.

20. It may be - I cannot say - that all three men deserved exactly the same punishment and that that punishment was no more and no less than what they received. The Crown is seeking to review Mr Lai's sentence. That I have been informed. I do not know the position in regard to Mr Soh. I express no view on the possibility that the Court of Appeal hearing the application to review will interfere by ordering Mr Lai's sentences to be served consecutively subject to some adjustment dictated by the totality principle. Certainly, I dealt with Mr Lai's application for bail pending appeal ignoring any such possibility. I was not invited to deal with it on any other basis. I should approach, I think, this applicant's application on the same basis, so that his "disparity" argument cannot be ignored. And doing so, I take the view - and act on the view - that his appeal against sentence is promising. That factor seems to me for present purposes at least to cancel out the fact that he had not spent 15 months in custody before conviction and sentence while Mr Lai had.

21. In all the circumstances, it seems to me fit that this applicant be admitted to bail; and I so admit him. As to terms, he offers: a cash deposit in the sum of $500,000; one surety in like amount; and the surrender of his travel documents. I admit him to bail on the terms of: that cash deposit; such a surety to be approved by the Registrar; the surrender of his travel documents to the court; and an undertaking to which I will come in a moment. There is also an offer of reporting; but the Crown does not wish the imposition of any reporting condition; and I impose none. The Crown invites me to extract as a condition of bail an undertaking from this applicant not to leave Hong Kong. That was an undertaking, I should mention, offered by Mr Lai. I will pause now to ascertain from the present applicant's counsel that he gives such an undertaking.

[Undertaking discussed]

Counsel, on instructions, gives that undertaking on this applicant's behalf.

22. On that undertaking and on the other conditions which I have announced, I admit the applicant to bail pending appeal.