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FAMC Nos. 45 & 50 of 2017
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NOS. 45 & 50 OF 2017
(CRIMINAL)
(ON APPLICATION FOR LEAVE TO APPEAL FROM
CAAR NO. 3 OF 2016)
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BETWEEN
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SECRETARY FOR JUSTICE |
Applicant
(Respondent) |
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and |
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LEUNG HIU YEUNG (梁曉暘) (D1) |
1st Respondent
(Applicant in FAMC 50/2017) |
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CHIU HIN CHUNG (招顯聰) (D11) |
10th Respondent
(Applicant in FAMC 45/2017) |
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Before : Chief Justice Ma in Chambers
Date of Hearing and Ruling : 29 December 2017
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RULING ON BAIL
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Chief Justice Ma :
1. There are before me 2 applications for bail pending the hearing of applications for leave to appeal to the Court of Final Appeal. These appeals for leave relate to a review of sentence by the Court of Appeal[1] under s 81A of the Criminal Procedure Ordinance[2] in which sentences of imprisonment were substituted for sentences of community service which had originally been imposed by the trial court.[3] The sentences arose from convictions for unlawful assembly in relation to an incident that took place on 13 June 2014 at the Legislative Council Complex. Before the trial magistrate, 13 defendants[4] were convicted of this offence (as well as some other offences), 2 of whom were the present applicants for bail. All 13 defendants were involved in the review before the Court of Appeal.
2. Following the review, all 13 defendants (including the present applicants) have applied for leave to appeal to the Court of Final Appeal. Various grounds are relied on; some said to involve questions of great and general importance, others based on the substantial and grave injustice ground.[5]
3. On 16 January 2018, the Court will hear an appeal, Secretary for Justice v Wong Chi Fung and Others,[6] which will involve the determination of a number of issues that resemble some of the questions in respect of which the 13 applicants have sought leave to appeal. It was for this reason that the Court of Appeal on 14 November 2017 certified 4 questions[7] as involving points of law of great and general importance, following applications for certification from 12 of the 13 applicants.[8]
4. On 24 November 2017, Mr Justice Ribeiro PJ[9] granted bail to 8 of the 13 applicants pending the determination of their applications for leave to appeal. Notwithstanding that the circumstances may turn out to be different to those in the Wong Chi Fung appeal, Ribeiro PJ thought it was undesirable, in view of the said certification of issues by the Court of Appeal, for a single Permanent Judge at this stage to refuse bail on the basis that the leave applications were wholly lacking in merit. He referred to the relevant principles summarized in the judgment of Mr Justice Fok PJ in HKSAR v Yu Oi Kee.[10] Ribeiro PJ also ordered that the hearing of the applications for leave should take place shortly after judgment has been given in the Wong Chi Fung appeal.
5. The 2 applicants before me seek bail on the same terms as the 8 applicants. The Amended Notices of Application for Leave to Appeal of both applicants contain a number of questions for which leave is sought including some of the issues sought to be raised by the other 8 applicants (and in respect of which the Court of Appeal had certified to be questions of great and general importance).[11] They are therefore in a similar position as the other applicants who have been granted bail by Ribeiro PJ. They both make the point that if they are not granted bail, by the time the applications for leave to appeal are heard, they will have served the significant part of the sentences imposed by the Court of Appeal. This means, it is submitted, there is a risk of their appeals (if leave is granted) being rendered nugatory.
6. I am of the view that bail ought to be granted to the 2 applicants. The Secretary for Justice does not object and accepts there is no flight risk, although it is suggested in view of the circumstances of the applicant Chiu Hin Chung, more stringent conditions ought to attach. It was pointed out that in the Reasons for Judgment in the sentencing review, in describing the circumstances of Mr Chiu, the Court of Appeal said he had no fixed correspondence address and had failed to provide a contact telephone number. Further, he had not appeared at the review hearing even though attempts were made to contact him. He has now provided an address and in his solicitor’s affirmation, has indicated his willingness to accept stringent bail conditions. He has also undertaken through his counsel to provide a contact telephone number before he is released, should bail be granted. I am satisfied that bail should be granted to Mr Chiu.
7. Bail is accordingly granted to the 2 applicants until the hearing of their applications for leave to appeal or until further order, on the following terms for each applicant :-
(1) Cash bail of $10,000;
(2) There be a surety, acceptable to the Registrar, for the sum of $10,000 (only for Chiu Hin Chung);
(3) They are not to leave Hong Kong;
(4) All travel documents to be surrendered prior to release from custody;
(5) The applicants to report to Tai Po Police Station (for Leung Hiu Yeung) and Sham Shui Po Police Station (for Chiu Hin Chung) between 6:00 p.m. and 9:00 p.m. every Thursday;
(6) Both applicants to reside at the addresses identified in the affirmations filed in support of their applications, in counsel’s skeleton submissions and as provided today, and to inform the said respective police stations of any change 48 hours in advance; and
(7) Both applicants undertake to appear in court on the date to be fixed for the hearing of the applications for leave to appeal or until further order. The applicant, Chiu Hin Chung, has also provided another undertaking to the Court as earlier mentioned.
8. The hearing of the applications for leave to appeal will be fixed shortly after the Court of Final Appeal issues its judgment in FACC 8-10 of 2017. The granting of bail does not reflect one way or the other whether leave to appeal will be granted to the applicants. Should leave not be granted, they will be required to return to prison to serve out the remainder of their sentences.
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(Geoffrey Ma)
Chief Justice
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Mr Douglas Kwok, instructed by Bond Ng Solicitors, assigned by the Director of Legal Aid, for the Applicant (D1) in FAMC 50/2017
Mr Jeffrey Tam, instructed by Ho, Tse, Wai & Partners, assigned by the Director of Legal Aid, for the Applicant (D11) in FAMC 45/2017
Mr Ned Lai, SADPP and Ms Karen Ng, PP of the Department of Justice, for the Respondent
[1] Yeung VP, Poon and Pang JJA (CAAR 3/2016). Judgment was dated 15 August 2017, the Reasons for Judgment were handed down on 11 September 2017.
[2] Cap 221.
[3] Mr Jason Wan, Permanent Magistrate (ESCC 3658/2014, dated 30 December 2015).
[4] The original charges involved 15 defendants but 2 of these (the 9th and 13th defendants) were separately tried. The 13 defendants included the 2 applicants.
[5] See s 32(2) of the Hong Kong Court of Final Appeal Ordinance Cap 484 (“the HKCFAO”).
[6] FACC 8-10 of 2017.
[7] Under s 32(2) of the HKCFAO.
[8] The only applicant not to apply for certification was Chiu Hin Chung, one of the present applicants for bail.
[9] In a Ruling on Bail (FAMC Nos. 43, 44, 46, 47, 48, 49, 51 and 55/2017).
[10] FAMC 69/2015 (4 February 2016).
[11] As noted above, the applicant Chiu Hin Chung did not apply to the Court of Appeal for certification under s 32(2) of the HKCFAO but instead has applied for leave to appeal to the Court of Final Appeal on the substantial and grave injustice ground. The issues he seeks to raise, however, include those grounds which the Court of Appeal has certified. He is therefore also to be regarded to be in the same position as the other applicants who have obtained bail.
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