SECRETARY FOR JUSTICE v. WONG SHU KIN AND OTHERS

HCMP 2577/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. HCMP 2577 OF 2003

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J U D G M E N T

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1. This is an application under section 9H of the Criminal Procedure Ordinance (Cap. 221) which reads:

"(1) Where a District Judge or magistrate has admitted any person to bail the Secretary for Justice may apply to a judge to review the decision of the District Judge or magistrate.

(2) Subject to section 9I(3), an application under subsection (1) shall be made by summons before a judge in chambers and supported by affidavit.

(3) The summons may be served on the person admitted to bail at any time before the time appointed therein for the hearing.

(4) On the hearing of the application the Secretary for Justice shall be entitled to put before the judge such relevant argument and such relevant matter as he thinks proper, whether or not the same was before the District Judge or magistrate who made the decision, and the person admitted to bail shall also be entitled to be heard.

(5) Notwithstanding subsection (4), if the person admitted to bail fails to appear a judge may hear and determine the application in the absence of the person if he is satisfied that the person has been served with the summons or has refused to accept service of the summons or that all reasonable attempts have been made to serve the summons.

(6) Where a judge has heard an application under this section in the absence of the person admitted to bail, he may rehear the application if he is satisfied that it is just to do so.

(7) Upon hearing the application, a judge may by order confirm, revoke or vary the decision of the District Judge or magistrate, and may make such other order in the matter including an order as to costs as he thinks just.

(8) On the revocation or variation of a decision of the District Judge or magistrate under subsection (7), a judge may issue a warrant for the arrest of the person admitted to bail.

(9) No appeal shall lie from the decision of a judge on an application under this section."

2. The decision which I am reviewing is a decision made by Deputy Judge Jenkins in the District Court on 5 June 2003. He had convicted the Respondents on a charge against all of them of resisting police officers in the due execution of their duty, contrary to section 36(b) of the Offences Against The Person Ordinance (Cap. 212). And he had sentenced each of them to four months' imprisonment. Then, by the decision now under review by me, he admitted them to bail pending appeal.

3. Mr Wong for the prosecution asks me to revoke that decision on the ground that it was made without jurisdiction. Mr Davies for the Respondents, although accepting that the Deputy Judge has no inherent jurisdiction to grant bail pending appeal, submits that the Deputy Judge had jurisdiction to do so under section 83Z of the Criminal Procedure Ordinance (Cap. 221). And Mr Davies submits that therefore the Deputy Judge's decision should not be revoked.

4. In my view, the decision was made without jurisdiction. The court to which appeals from the District Court lie, namely the Court of Appeal, has jurisdiction to grant bail pending appeal to persons convicted and sentenced in the District Court. But the District Court itself has no such jurisdiction.

5. In this respect, the District Court is in a different position from the Magistrate's Court on which section 119(1)(a) of the Magistrates Ordinance (Cap. 227) confers jurisdiction to grant bail pending appeal from it. Section 83Z of the Criminal Procedure Ordinance merely sets out the matters that a court is to take into account when deciding whether or not to grant bail that it has jurisdiction to grant. It does not confer any general jurisdiction to grant bail. There is no statutory provision conferring jurisdiction on the District Court to grant bail pending appeal from it. There being no statutory jurisdiction to do so, there is no jurisdiction at all to do so. This is because it is well established that a trial court does not have inherent jurisdiction to grant bail pending appeal from it. See Ex parte Blyth [1944] 1 KB 532; Lala Jairam Das v King Emperor [1945] 61 TLR 245; Ex parte Speculand [1946] KB 48; Ex parte Burke [1982] 30 SASR 278 and Ex parte Rundle [1982] 30 SASR 282.

6. In the result, I revoke the Deputy Judge's decision admitting the Respondents to bail. Mr Davies has indicated that should I be against him he would probably make an application to me on the Respondents' behalf for bail pending appeal. But since appeals from the District Court lie to the Court of Appeal rather than to the High Court, I do not consider that to be the appropriate course for the Respondents to take. Whether the Respondents now apply to the Court of Appeal which I believe can act very quickly by a single judge of that court for bail pending appeal is a matter for them.