HKSAR v. FONG KING CHOI

CACC 319/2018

[2019] HKCA 487

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 319 OF 2018

(ON APPEAL FROM DCCC NO 90 OF 2018)

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REASONS FOR DECISION

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1.  On 26 April 2019, I granted leave to the applicant to appeal against his sentence of 20 months’ imprisonment which had been imposed on him on 9 October 2018, having pleaded guilty to the offence of blackmail. The offence involved the applicant making a demand for $100 from the manager of a 7-Eleven store on 30 October 2017. It was accepted that he was intoxicated and agitated at the time, although he behaved aggressively towards the staff of the store. I granted leave on the basis that it was reasonably arguable that the sentence that was imposed on him was manifestly excessive or wrong in principle.[1]

2.  The applicant applied for bail pending appeal.  He had by the time of the application served 335 days towards his sentence.  This was roughly the equivalent of having served 11 months’ imprisonment.  I was informed that after the imposition of the present sentence, the applicant had been sentenced to 6 months’ imprisonment in another case for possession of a dangerous drug of which 3 months was ordered to run consecutively to the present sentence.

3.  By section 83R of the Criminal Procedure Ordinance, Cap 221, the Court of Appeal may, if it thinks fit, admit an applicant to bail pending his appeal.[2]  The decision as to whether to grant bail pending appeal to an applicant will turn on whether it is just to do so.

4.  The test to be applied when considering an application for bail pending appeal was succinctly summarised by Chu JA in HKSAR v Sheung Kit Fung and Another, CACC 149/2013, 15 August 2013, unreported, as follows:

“5. Bail pending appeal is exceptional and generally speaking should only be granted where it appears that the appeal would be successful (‘merits’ ground), 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 (‘time’ ground): HKSAR v Lau Man Kin [2010] 1 HKLRD 336. Where the ‘time’ ground is relied upon, an applicant must still demonstrate that his appeal is reasonably arguable.”

5.  A court will address the issue of bail pending appeal by asking the preliminary question whether the appeal has a strong likelihood of success and if it does, go on to consider matters relevant to whether or not to grant bail, and if so, whether it should be with or without conditions additional to the requirement for the applicant to surrender to the court as appointed.

6.  The court will next consider the question as to the likelihood that all or a substantial part of the sentence will be served before the disposal of the appeal.  It has been held that with respect to this ground, it also needs to be shown that the appeal is at least reasonably arguable[3] or promising[4].

7.  The relevant factors in this case were that I had determined that there was a reasonably arguable ground of appeal that the applicant’s sentence was manifestly excessive or wrong in principle, and that the applicant had so far served about 11 months of a sentence of 20 months’ imprisonment.  An additional relevant factor was that because of the circumstances of the case an expedited hearing of the applicant’s appeal was fixed for 10 July 2019.  The issue for consideration in this application centered on whether there was a real likelihood that the applicant would have served all or a substantial part of his sentence by the time the appeal was heard.  See HKSAR v Au Yeung Chun Yee, CACC 438/2014, 25 April 2016, unreported, per McWalters JA.

8.  Assuming that the applicant’s ground of appeal would be successful and that the Court of Appeal would reduce his sentence, I found that there was a real likelihood that the applicant would have served all or a substantial part of the sentence of imprisonment before his appeal was heard.  I took into account that the resultant sentence on a successful appeal would be less than 20 months’ imprisonment which when further reduced by the one third remission for good behaviour would have brought the sentence to a term near or less than the time so far served by the applicant of about 11 months.  I was informed that the applicant had committed a number of disciplinary offences whilst in prison, and according to the prison authorities this would reduce his one third remission by only 8 days.  See Rule 69 of the Prison Rules, Cap 234A.

9.  I was also informed, although it was not made very clear to me, that according to the prison authorities that if bail were to be granted to the applicant in relation to the present sentence then the other sentence would be set off against the days served by the applicant (as at the date of the other sentence), and his present sentence would be recalculated, taking into account the remaining days served by the applicant, after the present sentence was finally determined on appeal. As the other sentence was 6 months’ imprisonment, of which 3 months was to run consecutively to the present sentence, I was still satisfied that there was a real likelihood that the applicant would have served all or a substantial part of his sentence by the time the appeal was heard.

10.  For these reasons, I granted the application, subject to the various terms and conditions.