THE QUEEN v. CHAN NAI KEUNG, DANIEL

IN THE COURT OF APPEAL

1985, No. 156
(Criminal)

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J U D G M E N T

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Headnote: Restoration of conviction consequent upon the judgment of the Privy Council: Article 26 Order in Council Vol. 29 Appendix III: procedure.

Silke, V.-P.

1. Daniel Chan Nai Keung was convicted on 27th March 1985 in the District Court before His Honour Judge Blackwell for the offence of theft and, on 10th April 1985, he was sentenced to imprisonment for 21 months.

2. He filed a Notice of Appeal seeking leave to appeal against both conviction and sentence and another Division of this Court, of which I was a member, heard the application on 25th October 1985. Judgment was delivered on 6th November 1985 granting leave and allowing the appeal. The conviction was quashed and in consequence so was the sentence.

3. On 12th February 1986, the Attorney General obtained special leave to appeal to Her Majesty in Council. Judgment allowing the appeal was delivered on 22nd June 1987 and the conviction was restored.

4. The formal Order of the Majesty in Council was made on 21st July 1987 but it was not received in Hong Kong until 7th September 1987. On the same day it was filed in the Registry.

5. I now have before me an application by the Crown that that Order be given effect and seeking certain consequential orders.

6. Article 26 of the Order in Council Regulating Appeals in the Court of Appeal for Hong Kong to His Majesty in Council, (Statutory Instrument dated 27th November 1957) contained in Volumn 29 Appendix III the Laws, states:

"The Court shall confirm with and execute any order which His Majesty in Council may think fit to make on an appeal from a judgment of the Court in like manner as any original judgment of the Court should or might have been executed."

In this context, "the Court" is the Court of Appeal and, under the provisions of Section 35 of the Supreme Court Ordinance, a single Justice of Appeal may constitute the Court.

7. The consequential orders sought are first, a declaration that the conviction of the Respondent in the Kowloon District Court Case No. 677 of 1984, be restored; second, a request that a warrant of arrest be issued, with which I shall deal with separately, and third, an order restoring to the list of Appeals the Respondent’s appeal against sentence which lies as yet upheard.

8. The precedent for these proceedings was set in The Queen v. Wong Muk Ping and another[1]. There had, apparently been no like proceedings decision. I would happily follow the course there by my Lord Kempster, J.A.

9. I would declare and order that the conviction entered on 27th March 1985 be restored and, consequentially, that sentence shall continue to run upon the surrender of the Respondent. I do not think that, here an order for the issue of warrant to commit the Respondent into the custory of the Correctional Services Department is a necessary concomitant of the restoration. I would simply direct that as, he has appeared in this Court today and as formal evidence of his identity and that he is the convicted person named, has been tendered he now surrender himself and be returned to the custody of the Correctional Services Department.

10. The appeal for leave to appeal against sentence is restored to the list of Appeals and there should be an expidited hearing.

11. Those are the formal orders. There is also an application for bail.

12. Mr. Whitehead has drawn my attention to the lengthy period during which the Respondent has had this matter hanging over his head, from the granting of special leave on 12th February 1986, to the actual hearing on 19th May 1987 and then the period between then and 7th September 1987 when the Order was received in Hong Kong. As Mr. Marash very rightly pointed out to me the normal criteria for allowing bail in respect of appeals subsequent to conviction, whether they be appeals against conviction or appeals against sentence, is a high likelihood of success and anything I say now is not to derogate in any way from that test. The circumstances here are unusual, the prisoner was first charged in November 1984 and that is some considerable time ago. I have been told of his personal circumstances. He now has a job earning $120,000 a year and his employer is prepared to support him in that employment knowing, as I understand it, his history.

13. He had been granted bail prior to conviction and had surrendered to it. After his conviction and pending the appeal to this Court he was also on bail. He had surrendered to that bail He has surrendered here today.

14. I think that it would be proper in the unusual circumstances, and without indicating in any way my view is to the propriety of the 21 months sentence imposed, that bail should be granted.

15. I would grant him bail on terms of cash $20,000 and one surety in like amount and the surrender of his travel document.