HKSAR v. LAM KIT WAI AND OTHERS

CACC 107/2021

[2023] HKCA 864

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 107 OF 2021

(ON APPEAL FROM DCCC NOS 873 OF 2018 AND 757 OF 2019)

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J U D G M E N T

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Hon Macrae VP (giving the Judgment of the Court):

Introduction

1.  The four applicants, whom we shall refer to by their trial designations as D1, D7, D8 and D9, seek to renew their respective applications for bail pending appeal pursuant to section 83Y(3) of the Criminal Procedure Ordinance, Cap 221 (“the Ordinance”).  Since it is accepted that a renewed application for bail pending appeal under this subsection has never been sought before, it is relevant to set out the events which have led to this unprecedented hearing.

Events taking place before the present hearing

2.  On 19 March 2021, the applicants were convicted after trial before HH Judge Casewell in the District Court on a number of charges of Dealing with property known or believed to represent proceeds of an indictable offence (commonly known as “money laundering”), contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap 455.  

3.  On 11 May 2021, the applicants were sentenced by the judge to various terms of imprisonment: 60 months (in the case of D1), 48 months (in the case of D7), 45 months (in the case of D8) and 54 months (in the case of D9).  Their earliest dates of discharge are, we are informed, 18 July 2024 (in the case of D1), 11 November 2023 (in the case of D7), 19 September 2023 (in the case of D8) and 19 March 2024 (in the case of D9).

4.  Following their conviction, the applicants filed their respective Form XI Notices of application for leave to appeal against both conviction and sentence within time.

5.  On 19 October 2021, Messrs Li and Partners was instructed to act for the applicants in the appellate proceedings.

6.  On 12 April 2022 (after being twice granted an extension of time), two separate sets of joint Perfected Grounds of Appeal (one against Conviction and one against Sentence) in respect of all the applicants were filed with the Court, attaching their waivers of Legal Professional Privilege.  All of these Perfected Grounds of Appeal were settled by Mr Joseph Tse SC and counsel Mr Charles Chan.  The time estimate of the leave applications was stated to be 3 days.

7.  On 8 November 2022, the exchange of affirmation evidence in support of the complaint of flagrant incompetence (which is a common ground of appeal against conviction as between all applicants) was concluded.

8.  On 22 November 2022, M Poon JA heard the applications for bail pending appeal of D1 and D7, both of whom were represented by Mr Tse SC.  In the course of his submissions, Mr Tse informed the judge that “for the purpose of the bail application, we do not specifically rely on the grounds of flagrant incompetence against the trial counsel”[1].  At the end of the hearing, M Poon JA dismissed the applications with reasons, having considered all grounds of appeal.

9.  On 30 January 2023, M Poon JA heard the applications for bail pending appeal of D8 and D9, both of whom were represented by counsel, Ms Rosa Lee.  Their applications were also dismissed with reasons by the judge who, in her decision, noted, “Ms Lee, for D8 and D9, made it clear that although flagrant incompetence of trial counsel is alleged, she is not relying on such at this bail application”.

10.  On 24 February 2023, Messrs Li and Partners filed a letter consisting of a single page, applying for a one-day hearing for bail pending appeal “before the Full Bench of the Court of Appeal”, attaching thereto the summonses of the applicants.

11.  On 28 February 2023, the Court issued a Notice of an Application for Bail to each applicant, stating that the “application will be heard before the Honourable Madam Justice M Poon JA … on Friday 28^th day of April 2023 at 10:00 o’clock in the forenoon”. 

12.  On 8 March 2023, Messrs Li and Partners filed with the Court a letter, consisting of two pages, addressed to the Registrar of the High Court, asking the Court to “vacate the hearing before the Honourable Madam Justice M Poon JA and grant us a date before the Full Court of the Court of Appeal to hear our clients’ renewed applications for bail pending appeal”.  The solicitors enclosed with their letter a copy of section 83Y of the Ordinance and an unreported version of the decision of the Court of Final Appeal in HKSAR v Md Emran Hossain^[2], without any explanation or legal submission in support.

13.  On 10 March 2023, Master Chung, the Criminal Appeals Master, directed that:

“The bail hearing on 28.4.2023 stands. Solicitors may make any application which they consider appropriate at the bail hearing.”

14.  On 24 April 2023, four days before the proposed bail hearing, the appeal was fixed in consultation with counsel’s diaries. Accordingly, the Court issued a Notice of Hearing to the parties, stating that the appeal proper “will be heard in the Court of Appeal on Tuesday 23^rd day of January 2024, at 10:00 o’clock in the forenoon (Hearing dates of 23^rd to 25^th January 2024 … reserved.)” 

15.  Four days later, at the beginning of the hearing before M Poon JA on 28 April 2023, Mr Tse, on behalf of the applicants, pointed out that it had not been not his intention to have the applications heard by her Ladyship and requested that the same applications be determined by the full Court of Appeal.  Again, absent any written submission prepared in advance, or oral submissions to justify his request, Mr Tse merely submitted that section 83Y(3) “speaks for itself”, “[the applicants] don’t even need to seek leave … to appear before the Full Court for … this is a matter of right”.  Since Mr Tse was evidently not happy to proceed, M Poon JA ordered that the matter be referred back to the Criminal Appeals Master.  There was some initial dispute in argument before us between the parties as to whether M Poon JA had already ordered this matter to go before the full Court.  On reading the transcript of proceedings of that day, it becomes clear that the judge was not making such an order.  Her intention was simply to remit the matter back to the Master for further action.

16.  On 4 May 2023, Master Chung duly gave the following directions:

“Counsel of both sides should provide, within 7 days from the date of this letter, their available dates in May, June, July and August 2023 for the purpose of fixing an expedited hearing before the full Court to deal with D1, D7, D8 and D9’s applications for leave to appeal and for bail pending appeal. Time estimate: 1 day, with the following (working) day reserved.”

It may be noted that the Court acted as expeditiously as it could in the circumstances and indicated that it could have accommodated this matter as early as May or June of this year, had Senior Counsel been able to deal with the matter then, which he was not.  That is not a criticism of counsel: we simply desire to make the point that this Court has always been alive to the need for expedition in this particular case.

17.  In the event, on 18 May 2023, and with particular deference to Mr Tse’s availability, the Court issued to each of the applicants a Notice of an Application for Bail, stating that the “application will be heard in the Court of Appeal ... on Tuesday the 11^th day of July 2023 at 10:00 o’clock in the forenoon”. 

18.  On 23 May 2023, Master Chung directed the parties to file their written submissions for the present hearing.  They were also informed that today’s hearing would deal with the question of bail only.

19.  On 13 June 2023, the applicants’ written submission, settled by Mr Tse, was filed with the Court and promptly considered by Macrae VP in Chambers, who on 15 June 2023 made the following observations, and gave the following directions:

“…nowhere in his written submission dated 13 June 2023 did Senior Counsel address a preliminary legal issue, namely why the applicants shall be entitled to a full-court hearing for present purposes.

Unless Senior Counsel files a supplemental written submission on the preliminary legal issue by 21 June 2023 and the Court is persuaded, the Court may not deal with the applications at the hearing and costs may be unnecessarily incurred.

In the premises, local case authorities should be cited in the supplemental written submission to substantiate the proposition that the applicants have a right to renew their applications for bail pending appeal to the full Court under section 83Y(3) of the Criminal Procedure Ordinance, Cap 221 and have such renewed applications determined prior to their substantive appeals.  Assuming, but not deciding, that the applicants do have the right to do what is suggested, they should be warned of the consequences of so doing, which may include a direction for loss of time spent in custody pending their appeals, if the full Court were to come to the conclusion that there was no justification for the renewal of the applications.”

20.  On 20 June 2023, a four-page supplemental written submission, again settled by Mr Tse, was filed on behalf of the applicants.  It was specifically conceded in that submission that no known local decision could be found on the matter with which this Court was particularly concerned.

21.  On 27 June 2023, Mr Mitchell, on behalf of the respondent, filed his written submission with the Court.  It was accepted by the respondent that the applicants were entitled to a full court hearing on the face of the section, although, again, no local authority was cited on the matter.

22.  The position has not changed and neither party has sought to put before us any authority dealing specifically with the application of section 83Y(3) of the Ordinance to applications for bail pending appeal.  Although Mr Tse began his submissions by suggesting that there had been a change of circumstances, since (i) the appeal had now been set down; (ii) the applicants would have served all or the greater part of their sentence by the time of the hearing of the appeal; and (iii) full written submissions had now been filed by the respondent, his argument, with respect, rather unravelled when it was pointed out that on 28 April 2023 at the proposed, but ultimately abortive, bail pending appeal application, the date of the appeal proper had already been fixed and the respondent’s written submissions already filed[3].  Yet Mr Tse began the hearing before M Poon JA by saying to the judge:

“It’s pointless to be returning to an application before your Ladyship because no circumstances have changed.”

He has since sought to resile from this statement on the basis that it was not made at the application he had requested, but we think it was a considered statement by leading counsel, which meant what it said.  That statement, of course, was made less than 2½ months before the hearing today.

23.  We do not, with respect, think there has been any material change of circumstances since the hearings before M Poon JA in November 2022, January 2023 or April 2023.  Whether that is significant is another matter.  In any event, as the argument developed, we think Mr Tse shifted the basis of his application more to the unqualified right of an applicant or appellant to apply to the full Court for bail pending appeal under section 83Y(3), following a refusal of bail by a single judge.

Application for bail pending appeal

24.  The jurisdiction of this Court to grant an applicant bail pending appeal derives from section 83R(1) of the Ordinance, which specifically provides 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.”

25.  Section 83Y(1) and (2) of the Ordinance further provides that:

“(1) The powers of the Court of Appeal under this Part which are specified in subsection (2) … may be exercised by a single judge in the same manner as they may be exercised by the Court of Appeal and subject to the same provisions.

(2) The said powers are the following—

(a) – (d)	…
(e)	to admit an appellant to bail;
(f) – (j)	…”

26.  In accordance with these provisions, an application for bail pending appeal is invariably heard by a single judge of the Court of Appeal.

27.  In any first application for bail pending appeal, the consideration of the Court as to whether bail should be granted is normally based on two factors: first, whether the appeal has a strong likelihood or prospect of success (the so-called “merits factor”); second, whether there is a likelihood that all, or a substantial part, of the sentence would be served before the disposal of the appeal (the so-called “time factor”)^[4]. However, the time factor does not absolve the Court from making an assessment of the merits, for if there is no merit in an application for bail, there is no point in considering the question of time.  Indeed, as Bokhary JA (as he then was) pointed out in R v Lee Chi Ching^[5]:

“…if the appeal were hopeless, an application for bail pending the same would, in truth, be tantamount to an abuse of process.”

Repeat application for bail pending appeal

28.  In the event that the first application for bail pending appeal is refused by the single judge and the applicant subsequently lodges a second or repeat application, it is necessary to remind ourselves of the correct approach to such applications.

29.  In R v Wai Yu Tsang^[6], a decision of Hunter JA, sitting as a single judge of the Court of Appeal, it was said of section 83R “that there is no reason for reading into that section words of limitation that an applicant can only apply once”[7]. Hunter JA went on to hold that “on a second application there has to be changed circumstances”[8], and explained^[9]:

“… to constitute new circumstances within this broad restriction it must be something new; and it must be something substantial. It must be something convincing; and it must be something which the later judge can be fairly sure was not necessarily overlooked but was not present in the mind of the earlier judge.”

30.  Undesirably perhaps, we note from our own judicial experience that some applicants nevertheless repeatedly apply for bail pending appeal, notwithstanding that there is no real change of circumstances at all.  To cite two recent examples, in HKSAR v Ko Wai Kin^[10], the appellant lodged no less than four applications for bail pending appeal within an 18-month period, two of which applications were subsequently withdrawn by the appellant himself, and two were eventually heard and dismissed by the Court.  In HKSAR v Luk Wing Kei^[11], the applicant made a total of four applications for bail pending appeal within an 8-month period.  All of the applications were dismissed on the merits.

31.  In Wai Yu Tsang, Hunter JA traced[12] the provenance of the requirement for a change of circumstances before making a second or subsequent application for bail pending appeal to the cases of R v Nottingham Justices, Ex parte Davies[13] and R v Reading Crown Court, Ex parte Malik[14].  Of our own jurisdiction, he said[15]:

“Perhaps more pertinently in this Court, in R v Tam Chung Shing [1988] 2 HKLR 214 at p 215, Cons VP said:

‘A second application is not intended to be an opportunity to put forward submissions which could have been but were not put forward at the earlier hearing, or to put forward the same submissions more persuasively. The court will only reconsider an application in the light of circumstances that have changed since the first hearing’.

So it is very easy for me to conclude that on a second application there has to be changed circumstances.  It is right to bear in mind that the decision of Kempster JA in this case was given by the single judge pursuant to powers of the single judge, section 83Y.  But it is the decision of a Court of Appeal, and there was no appeal from his decision under section 83Y(3).  So I must honour that decision as a decision of the court and not of a single judge.  In the light of that consideration what are the fresh circumstances?”

[Tam Chung Shing was applied by Cheung JA at the third application for bail pending appeal mounted in HKSAR v Posso Vergara Cristhian Enrique[16], the first two applications having come before another judge].

32.  It is clear from the above authorities that judges seized of such applications should remember that an applicant (whether acting in person or by counsel) making a second or further application for bail pending appeal must demonstrate to the Court that there is a substantial (which in this context means a material) change of circumstances, failing which the Court will require further information to its satisfaction, or it may not list the application for hearing.

Renewed application for bail pending appeal under section 83Y(3)

33.  Section 83Y(1) of the Ordinance states that the powers of the Court of Appeal may be exercisable by a single judge; but if the single judge refuses to exercise any of his powers specified under section 83Y(2), the applicant is entitled to renew the matter before the full Court under section 83Y(3).  The relevant provisions are:

“83Y. Powers of Court of Appeal under Part IV which are exercisable by single judge

(1) The powers of the Court of Appeal under this Part which are specified in subsection (2) and the power to give directions under section 156(5) of the Crimes Ordinance (Cap. 200) may be exercised by a single judge in the same manner as they may be exercised by the Court of Appeal and subject to the same provisions.

(2) The said powers are the following—

(a) to give leave to appeal;

(b) to extend the time within which notice of appeal or of application for leave to appeal may be given;

(c) to allow an appellant to be present at any proceedings;

(d) to order a witness to attend for examination;

(e) to admit an appellant to bail;

(f) to make orders under section 83F(2) and discharge or vary such orders;

(g) to give directions under section 83W(1);

(h) to give leave to apply for the review of a sentence under section 81A;

(i) to make orders under section 83XX for the payment of costs;

(j) to order a respondent to be detained in custody under section 81A(3).

(3) If the single judge refuses an application on the part of an appellant or applicant to exercise in his favour any of the powers above specified, the appellant or applicant shall be entitled to have the application determined by the Court of Appeal.”

34.  The wording of section 83Y(3) is significant. The procedure is not an appeal from the refusal of a single judge but an entitlement to have the same application determined by the Court of Appeal in the event of such refusal: see [37] infra.  This distinction is important.  It should further be noted that such entitlement is not without preconditions.  An applicant has no right to ask for any of his applications under section 83Y(2) to be heard by the full Court in the first instance.  It is for the Court to decide if the application is to be heard before the full Court or a single judge: see section 83Y(1).  This is primarily a case management decision and it provides the context in which to examine when and under what circumstances the renewal application before the Court of Appeal is to be heard.   

35.  In its most common exercise, an applicant is entitled to have his application for leave to appeal (under section 83Y(2)(a)) determined by the full Court under section 83Y(3) after it has been refused by a single judge.  We have come across another incidence of the use of section 83Y(3) by an applicant in Attorney General v Chuk Chi-hoi^[17]. There, following a refusal by the then Chief Justice, Sir Denys Roberts, to grant leave for the Attorney General to apply for a review of a sentence for manslaughter under section 81A of the Ordinance (acting as a single judge under section 83Y(2)(h)), the Attorney General sought to use section 83Y(3) in order to have the same application determined by the full Court.  The application for leave and the appeal (or review) proper were dealt with at the same time and both applications granted[18]. The effect of recourse to section 83Y(3) in both of the situations described above is that the determination of the section 83Y(3) application is done at the same time as the hearing of the appeal (or review) proper.  We should add that, like counsel for both parties, we are not aware of any case in which the entitlement under section 83Y(3) has ever been invoked in circumstances following a refusal by a single judge under section 83Y(2)(e).

36.  As a matter of construction of section 83Y(2) and (3), it is clear enough that an applicant is entitled to renew his application for bail pending appeal before the full Court.  However, the section is silent as to when such a renewal should take place and one crucial question must be whether it is appropriate for the full Court to give a final determination on an interim application for relief before the resolution of the substantive appeal, given that the test for bail pending appeal on the merits basis is such a high one.

37.  In HKSAR v Md Emran Hossain[19], the Court of Final Appeal discussed the nature of an application made under section 83Y(3), holding, at [27]:

“the appellant’s argument that the renewed application is an appeal from the single judge’s decision … is unconvincing. It is not an appeal from the single judge’s decision but instead a further hearing of the same application which will eventually lead to a final determination of the application.”

38.  We pause here to make two observations.  First, the subject-matter to be determined under section 83Y(3) must be the “same application” that has been earlier refused by the single judge.  It follows that any reliance on a new ground of appeal, which has not been screened by the single judge, should not normally be countenanced.  Otherwise, it becomes not a renewed application, but a fresh application for bail by an applicant, who must, under the principles earlier discussed, establish a material change of circumstances, and which application would invariably be listed before a single judge, not the full Court. We have already noted in the cases of the applicants here that the complaints of flagrant incompetence were grounds of appeal on which leading and junior counsel did not seek to rely at the previous hearings before the single judge, yet Mr Tse seeks to advance them in detail before us now.

39.  Secondly, barring any change of circumstances, once the matter of bail has been determined under section 83Y(3), it is a final determination by the Court of Appeal.  It would defy logic to say that, after an unsuccessful renewal before the full Court, an applicant could still mount an application for bail pending appeal before a single judge and then again be entitled to have the matter determined by the full Court in the event of the single judge’s refusal.  It would lead to a series of helical applications each time a new ground was advanced, necessitating a court of three (or two) appellate judges being convened at short notice to deal with it. 

40.  That is not to say that the applicants are not entitled to renew their applications for bail pending appeal before the full Court.  On the contrary, it is their entitlement under section 83Y(3). Furthermore, the prescribed Form XIII (Notice of Renewal of Application after Refusal by the Single Judge) under Rule 42 of the Criminal Appeal Rules expressly lists the applications which are to be renewed following a refusal by the single judge:

“The following applications are renewed:

*(a) EXTENSION of time.

*(b) Leave to appeal against CONVICTION.

*(c) Leave to appeal against SENTENCE.

*(d) BAIL.

...

*Delete as appropriate.” (Underlining added)

We also note, and we shall return to this matter in due course, that there are two Notes set out in the body of Form XIII, the first of which reads:

“A renewal to the Court after refusal by the Judge may well result in a direction for the loss of time, if the Court comes to the conclusion that there was no justification for the renewal. If the Judge has already directed that you lose time, the Court may direct that you lose more time.”

41.  Where there has been a refusal by a single judge, applications for renewal under (a), (b) and (c) are always then dealt with by the Court of Appeal at the hearing of the appeal proper.  In our judgment, so should (d) also be dealt with at the hearing of the appeal proper by the Court of Appeal, which will have had the opportunity to hear the arguments fully when determining the issues on appeal.

42.  Quite apart from the manifest disadvantages and illogicality discussed above of having the full Court determine an application for bail pending appeal in advance of the appeal proper, it would also seriously undermine the single judge procedure and place further strain on an already overburdened appellate system.  There are 13 appeal bundles before us, comprising, quite apart from the voluminous grounds of appeal, written arguments, affirmations in support and authorities, no less than 1702 pages of transcript, in a case of which the judge said in sentencing[20]:

“The investigative aspect of this case took at least six years. Obviously, this is a complex financial scenario involving a large number of bank accounts, Hong Kong Jockey Club accounts, and money transfers. The documentation is extraordinarily vast and at first sight chaotic.”

Mr Mitchell pointed out that in Md Emran Hossain, Fok PJ reminded us[21]:

“As this Court has held, in Chau Ching Kay v HKSAR[22], the single judge procedure under section 83Y of (the Ordinance) serves two useful purposes: first, it aims to relieve the full Court of Appeal of some of its workload; and secondly, it also serves as a screening process for unmeritorious applications.”

43.  This application has required three judges of the Court of Appeal to have inserted into their already busy diaries a complex commercial crime case for the purposes of determining, not the appeal proper, which has already been fixed in just over 6 months’ time, but renewed bail pending appeal applications, which emerged from two decisions under the single judge procedure, and where there has been no change of circumstances.  In theory, the application before us today could well, given its short notice, have been listed before three different judges from those scheduled to hear the appeal, which would thereby require six justices of appeal to read into this voluminous case in respect of two separate hearings.  As it happens, not all members of this Court will in fact be sitting on the appeal proper. This application demonstrates not how useful the single judge procedure is, but how useless it may be rendered if Mr Tse’s contention were correct that each and every renewal application before the full Court has to be heard prior to the appeal proper.

44.  For the above reasons and our analysis of section 83Y of the Ordinance, it is not appropriate for the Court to give a final determination on the present applications before the hearing of the substantive application for leave to appeal, which has been fixed to be heard over potentially three days in January 2024.  These applications should be dealt with at the same time as the appeal, by the full Court.

45.  If the argument is that by so doing, the entitlement under section 83Y(3) is rendered nugatory, we do not agree.  In a case as complex as this, but even if it were a simpler case, it is highly likely that the judgment of the Court would be reserved.  A judgment in such an appeal may take up to 6 months to be handed down by the Court.  The Court may consider any fresh application for bail pending appeal (if one is made) at the hearing of the appeal, when all issues are fully canvassed.

46.  If the argument is that D7 and D8 (not D1 or D9) will have served their sentences by the hearing of the appeal, they can always go back to the single judge, provided there is a material change of circumstances justifying a further application for bail pending appeal. However, as we have earlier found, and as Mr Tse has ultimately conceded, the imminent discharges of D7 and D8 on their own do not constitute a change of circumstances since the time when the single judge dealt with their applications.  That, under the application of ordinary principles, should be the end of the matter.

47.  In respect of all the applicants and the position taken by Mr Tse before us today, we can see no change of circumstances in any of their cases.  Moreover, by now attempting to rely on detailed grounds of appeal alleging flagrant incompetence, which Mr Tse specifically eschewed (as did subsequently Ms Lee), we think that he is attempting to do what Cons VP (as Cons NPJ then was) said 35 years ago in Tam Chung Shing should not be done.

48.  Finally, we should sound this warning.  If the full Court were to dismiss a renewed application for bail pending appeal before it, the Court has a power to order loss of time under section 83W(1) of the Ordinance for that matter alone[23], without prejudice to the Court’s general power to order additional loss of time if it were to dismiss the application for leave to appeal or renewed application for leave to appeal.  Furthermore, since the present case involves a common complaint of flagrant incompetence, the applicants should be aware of Practice Note (Crime: Sentence: Loss of Time) issued on 9 October 2013, that:

“10. The Court has also become concerned at the frequency with which unmeritorious allegations of incompetence are made against counsel and solicitors. Such an allegation causes the practitioner whose reputation is thus impugned to expend considerable effort in the preparation of affidavits or affirmations and, often, in attending the hearing of the application. Although allegations of flagrant incompetence will always be examined carefully, the frequency of wholly unwarranted allegations has increased, both at the hands of represented and unrepresented applicants. An unwarranted assertion of incompetence will normally attract an order for loss of time.”

49.  In summary, the applicants may run the risk of a loss of time order for a number of reasons.  However, we recognise there has been no leave application before a single judge and also, that this is the first time section 83Y(3) has been tested in relation to the renewal of an application for bail pending appeal.

Disposition

50.  Accordingly, we direct that any renewed applications for bail pending appeal be heard at the same time as the substantive appeals.  Since D7 and D8 will have been discharged from prison by that time, it is a matter for them if they still wish to pursue their applications before a single judge, if appropriate conditions are met.