HKSAR v. KO WAI SHING

CACC 7/2020

[2021] HKCA 457

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 7 OF 2020

(ON APPEAL FROM DCCC NO 416 OF 2019)

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D E C I S I O N

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1.  This is an application for bail pending appeal.

2.  By virtue of section 83R of the Criminal Procedure Ordinance, Cap 221, the Court of Appeal may, if it thinks fit, admit an appellant to bail pending the determination of his or her appeal.  This power can be exercisable by a Single Judge as provided by section 83Y(1) and (2)(e) of the Criminal Procedure Ordinance.  See also the relevant rules in the Criminal Appeal Rules (Cap 221A).

3.  In HKSAR v Fong King Choi (unreported, CACC 134/2019, 2 May 2019), I addressed the relevant considerations that a court normally takes into account when determining whether to grant bail to an appellant pending his or her appeal in my following remarks:

“6. It is well settled that there is no right to be admitted to bail pending appeal after a person has been convicted and sentenced to a term of imprisonment.[1] That is fundamentally because a convicted person has lost the presumption of innocence.

7. It follows that to admit an appellant to bail pending appeal is only done in exceptional circumstances and clearly at the discretion of the court.[2] To this end, the court must exercise such discretion judicially and should grant bail pending appeal when it is just to do so.[3]

8. It is accepted that when deciding whether to grant bail pending appeal relevant considerations generally involve the strength of the grounds of appeal and the length of sentence served by the time the appeal is heard.  It can be granted where there is a reasonable prospect of success of the applicant’s appeal or where there is a risk that the sentence imposed on the applicant will have been served by the time the appeal is heard, subject to the applicant having a reasonably arguable case on appeal.” 

4.  On 4 September 2020, I granted leave to the appellant to appeal his conviction for drug offences and his sentence of 3 years and 10 months’ imprisonment.  His appeal is tentatively fixed to be heard on 11 August 2021.  There are reasonably arguable grounds on the issue of joint position in respect of the appellant’s convictions on Charges 2 and 3, and of the excessiveness of the sentence imposed on the appellant.

5.  Ms Samantha Chiu, for the respondent, accepts that the appellant has a reasonable prospect of success in respect of his appeal against conviction and sentence.  She does not oppose the application for bail by the appellant.

6.  I am informed that the appellant is due to be released from prison custody on 12 January 2022.  Depending upon the outcome of his appeal, there is a real likelihood that the appellant would have served the whole or a substantial part of the sentence of imprisonment.  However, if the appellant is unsuccessful in his appeal, then he faces the prospect of having to return to custody to serve the remainder of his sentence.  Whilst this may unduly add to the penalty that has been imposed upon the appellant, it is a matter that he understands and is prepared to bear.  See HKSAR v Au Yeung Chun Yee (unreported, CACC 438/2014, 25 April 2016).

7.  I am satisfied that this is an appropriate case in which to grant the appellant bail pending appeal and that the proposed terms of bail provide appropriate safeguard to ensure his surrender to the court as appointed.