HKSAR v. SZE HOI YAN

CACC 56/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 56 OF 2015

(ON APPEAL FROM DCCC 739 OF 2014)

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DECISION
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1.  This is the applicant’s application for bail pending appeal.

2.  The applicant was convicted on her plea to one charge of assault occasioning actual bodily harm, contrary to Common Law and punishable under section 39 of Offences Against the Person Ordinance, Cap. 212, and one charge of blackmail, contrary to section 23(1) and (3) of the Theft Ordinance, Cap. 210.  On 4 February 2015, HH Judge Stanley Chan sentenced the applicant on both charges to detention in the Rehabilitation Centre.

3.  On 3 March 2015, the applicant lodged an application for leave to appeal against sentence.  The application has not yet been listed for hearing. 

4.  On 5 March 2015, the applicant applied for bail pending appeal.  

5.  The legal principles relevant to bail pending appeal are well settled. Bail pending appeal is exceptional and generally speaking should only be granted where it appears that the appeal would be successful, or where there is a risk that the whole or a substantial part of the sentence would have been served by the time the appeal was heard: HKSAR v. Lau Man Kin [2010] 1 HKLRD 336. Where the “time” basis is relied upon, an applicant must still demonstrate that his appeal is reasonably arguable.

6.  The applicant’s application is made on the basis that her appeal against sentence has a realistic chance of success, and that if bail is not granted, her sentence will be completed or substantially completed before the appeal is heard.   

7.  The facts admitted by the applicant show that she and the victim named in the two charges (“X”) are cousins.  On 20 May 2014, the applicant complained to the 1^st defendant that X had sex with her several times.  The 1^st defendant then told the applicant to ask X to come to the podium of Fu Cheong Estate with a view to beating him and teaching him a lesson.  Later in the same evening, the applicant telephoned X and asked him to come to the podium, on the pretext that she was drunk and wanted him to pick her up.  Shortly after X arrived at the podium, the 1^st and 3^rd defendants also came to the podium.  The applicant then said to the 1^st defendant, “I have finished acting, brother” and walked to one side.  The 1^st defendant then confronted X, asking whether he had sex with the applicant, to which X denied.  In the presence of the applicant, the 1^st and 3^rd defendants continued to accuse X of having sex with the applicant.  They were later joined by the 4^th and 5^th defendants.  The 1^st defendant told X to think of a way to resolve the matter.  When X could not, the 1^st, 4^th and 5^th defendants punched and kicked X for about two minutes. X fell onto the ground and felt pain on his head, back, chest and right arm. The 1^st defendant then took X’s wallet and took $400 from it.  Throughout the assault, the applicant was present.

8.  The 1^st defendant further demanded X to give him $10,000 by midnight to resolve the matter, hinting he had triad connections and threatened to cause troubles to X and his family if he failed to do so.  The 1^st defendant also warned X not to report to the police.  X was scared and told the 1^st defendant he could not get the money that night whereupon the 1^st defendant told him to pay $14,000 on the following day and repeated the threats.  All the people then left the podium.

9.  X made a report to the police.  The 1^st defendant and the applicant were arrested at the arranged meeting that took place the following evening.  Under caution, the applicant said, “Sorry, I should not have got someone to rob my cousin or blackmail my cousin.”  During the recorded interview with the police, the applicant admitted to having arranged with the 1^st defendant to get X beaten up and that she and the four defendants and another two girls were each to get $2,000 from the $14,000 that X was told to give to the 1^st defendant.

10.  The applicant was aged 15 at the time of the offences.  She had a clear record.  Before her remand, she was a Form 3 student.  The Judge had called for probation officer report and also a Rehabilitation Centre and Training Centre suitability report. The probation officer recommended open probation for 18 months with conditions.  The CSD report concluded that the applicant is fit for detention in either a Rehabilitation Centre or a Training Centre, but considered her more suitable for detention in a Rehabilitation Centre.  

11.  In passing sentence, the Judge observed that the applicant played a significant role in the incident in that she instigated the incident by enlisting the help of the 1^st defendant.  The Judge considered the applicant required a period of disciplinary training with supervision and accepted the recommendation of detention in a Rehabilitation Centre and sentenced the applicant accordingly.

12.  Mr McNamara in his submissions complained that the Judge failed to consider the view of the probation officer that probation supervision coupled with counselling and monitoring was a suitable treatment for the applicant and further failed to have proper regard to the applicant’s age, education and family background.  It was also submitted that the applicant’s school was prepared to let her continue her study in this school year, but the school placement may not be available after the current school year.  In support, a letter from the school principal was submitted.

13.  Relying on HKSAR v. Tsang Lok Fu & Anor, unreported, HCMA 944/2003, Mr McNamara argued that having regard to the circumstances of the case and the applicant’s personal circumstances, the applicant and her family should be given the opportunity to demonstrate that the applicant is able to rehabilitate and improve herself.

14.  The period of detention in a Rehabilitation Centre ranges between three and nine months. According to the applicant, she had been told she would be released from detention in custody to a residential centre in June, and would be released home later in September.  I note that the applicant was only granted legal aid last week and the perfected grounds of appeal have just been prepared.  Her application for leave to appeal will have to be listed together with that of the 1^st defendant.  In the circumstances, I accept it is probable that the applicant would have completed a substantial part of the detention order by the time her leave to appeal application is heard.                

15.  With regard to the prospect of the intended appeal, the Judge was correct to take a serious view of the case and to consider that the whole incident was brought about by the applicant and her wish to teach X a lesson.  However, it should also be borne in mind that the applicant was only a little over 15 at the time, had a clear record, and that the incident grew out of a relationship she had with the cousin.  The probation officer’s report also disclosed that the applicant had shown some remorse and had made improvements both in school and at home after her arrest for the case in question, and that her parents, though separated, are both caring and supportive.  Considering these matters in a round, I am of the view that the applicant’s appeal against sentence has a reasonable prospect of success.

16.  Mr Chung for the respondent has fairly adopted a neutral position after having the chance to consider Mr McNarama’s submissions.

17.  In the circumstances, I consider it is just that the applicant be admitted to bail pending her appeal.  The application is therefore granted.

18.  The applicant is granted bail pending appeal on the following conditions:

(1) Cash bail of HK$ 10,000;

(2) She shall reside with her mother; and

(3) She shall observe a curfew requirement of: (a) 9:00 pm to 6:00 am on Sunday to Thursday, and (b) 10:00 pm to 6:00 am on Friday and Saturday; unless she is accompanied by either or both of her parents.