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HCMP002531/1988
M.P. No. 2531 of 1988
IN THE SUPREME COURT OF HONG KONG
Miscellaneous Proceedings
Criminal Jurisdiction
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IN THE MATTER of Section 12C and 13 of the Criminal Procedure Ordinance, Cap. 221
and
IN THE MATTER of an application by the Attorney General for a review of the decision of a magistrate sitting at the Fanling Magistracy Case No. 13248 of 1988 to grant bail to POW Po-wo.
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Coram: Hon. Liu J. in Chambers
Date of hearing: 17th December 1988
Date of decision: 17th December 1988
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DECISION
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1. Bail has been granted to the defendant and she is brought before this Court on the Crown's application for a review.
2. First and foremost, we are all only too conscious of the fact that bail should not lightly be withheld. As the law now stands, the short point is : are there circumstances which render it probable that this woman would fail to surrender to her bail?
3. She is a resident of Hong Kong, holding a Hong Kong Identity Card. She has been here for many years. She came to Hong Kong when she was 12, in 1957. She is separated from her husband, but she has a young family in Hong Kong, 2 sons aged 13 and 17. She also has a daughter who is 19, but she is married herself. I am told that she has relatives here. It is pressed upon me that she has strong family and social ties with Hong Kong.
4. She has two previous convictions, both for having assisted in the management of an unlicenced massage establishment. These offences and convictions are decidedly unrelated to her present charge. Not being a first offender in this way, her sentence, if she is convicted, will not likely be heavier. In that limited sense, her previous convictions cannot be relevant.
5. I have also been invited to have regard to her sole source of income, as alleged by the prosecution, from vice activities. But that is not a matter which is material or relevant to the present application.
6. She is a native of Zhongshan, quite close to the border. I have said that she is well settled here after she came to Hong Kong in 1957. Evidently, it is not unfair to suggest that she has maintained Mainland China contacts if only for the fact that in the evening of the 11th, a week ago, when she presented herself to a Customs Officer at the Lowu Entry Point, she was caught allegedly red-handed with three blocks weighing as much as 1.2kg of suspected No. 4 heroin, with a retail price or value, after conversion to No. 3, of some $770,000. She denied knowledge. But, according to the prosecutions, she was unable to produce receipts nor did she recall where the article she was carrying had been purchased. She was charged, granted bail and the Crown now wishes her bail to be revoked.
7. There is good reason for suggesting that she has contacts inside the People's Republic of China. Although she has been here for a considerably long time, she is, nevertheless, a native of an area close to Hong Kong. She is alleged to have been caught red-handed. Failure to produce receipts or identify the place of her purchase, is a matter, according to the prosecution, which would not take her bald denial any further. There is merit in this contention.
8. The offence is serious. The quantity of drugs is sizable. The evidence is strong, and her denial of knowledge is, on the prosecution's facts, less than satisfactory. Penalty for the alleged offence, if she is convicted, is expected to be dreadful. It is forecast, and I have no reason to doubt the fairness or the accuracy of that estimation, that a conviction would carry a prison sentence in the region of ten years or perhaps more.
9. These factors show that there is some real opportunity for the defendant to try to leave the jurisdiction of our Courts.
10. The temptation not to attend at her trial for the alleged offence is overwhelming. That provides strong incentive. It is suggested that there was no attempt to absent herself from jurisdiction in her previous two charges. Those charges are, by comparison, minor offences and offences different in nature and gravity.
11. The matters I have endeavoured to specify must, in my view, override the few personal data in her favour. The circumstances I have referred to are sufficiently compelling for this Court to conclude that it is indeed probable that she would likely abscond.
12. We have yet to see the Government Chemist's certificate. It was suggested that the nature, perhaps, and more likely the precise quantity may well be different when the certificate finally comes. But it the discrepancies are significant, they would unquestionably constitute new circumstances on which further application for bail may be based.
13. Bail was granted by an experienced magistrate, but I have had now full particulars and all relevant matters presented for my concerned consideration. I have come to the conclusion that the Crown's application must be acceded to. In the result, the application for review is successful and I order :
1) Review granted;
2) Bail revoked; and
3) Defendant be remanded in jail custody.
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(B. Liu)
Judge of the High Court
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Representation:
Mr K. J. Oderberg, Senior Assistant Crown Prosecutor, for the Applicant
Mr M.K. Wong, instructed by C.W. Leung & Co. for the Respondent.
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