THE QUEEN v. WAI YU TSANG

BETWEEN

---------------

--------------------

J U D G M E N T

----------------------

Hunter, J.A. :

1. On 8th September 1988 Wai Yu Tsang was found guilty by a jury on an indictment charging conspiracy to defraud. The particulars were that on divers dates between 7th September 1982 and 13th November 1982 he together with two other employees of the Hang Lung Bank Limited and two outsiders conspired to defraud Hang Lung Bank and its existing and potential shareholders, creditors and depositors by dishonestly concealing in the accounts of the Bank the dishonouring of US$ cheques in a total sum of US$124m drawn on the account of Overseas Maritime Company Limted S.A. with Citibank International, Chicago, such cheques having been purchased by the Bank. The day following he was sentenced to three years' imprisonment.

2. On 27th September his application for bail pending appeal came before, and was rejected by Kempster JA. Since then, on 10th October 1982 Penlington JA has directed that the full transcript of the evidence given (with the exclusion of the voir dire) be placed before the Court of Appeal on the hearing of the appeal. That transcript is not anticipated to be available until March of this year.

3. I have now before me another application for bail pending appeal. The first thing that was most usefully discussed this morning was the proper approach of the court to a second application. Here conveniently counsel were agreed about certain premises. The first is that section 83R of the Criminal Procedure Ordinance is unlimited. It simply says that a "Court of Appeal may, if it thinks fit, admit" an appellant to bail. I agree with counsel that there is no reason for reading into that section words of limitation that an applicant can only apply once. I think it must he right that this court should retain the power in exceptional circumstances of reviewing the situation, if there has been a radical change in the circumstances.

4. Secondly counsel collectively invite me to read into that section something akin to what appears already in the section 12B of the Ordinance, which deals with bail before trial, and which denies in effect a second application unless "there has been a material change in relevant circumstances". S 12B(a). It is suggested that this is an appropriate restriction to he accented by the Court of Appeal. One precedent is that section.

5. Another is the practice in the United Kingdom which was considered by two Divisional Courts in 1981. The first case is The Queen v. Nottingbam Justices, Ex Parte Davies [1981] 1 OB 38, and the second The Queen v. Crown Court Ex Parte Malik [1981] QB 451; Donaldson LJ being the judge who gave the judgment in both cases. The first case dealt specifically with the position before Magistrates in England, which is now statutory, and where scheduled grounds of objection have to be established before bail can he refused. In the context of that situation Donaldson LJ likened the decision of the first bench who heard and refused the application, and ex hypothesi concluded that on that date a scheduled ground existed, to res judicata. He says this p 44 :

"It is a finding by the court that Schedule 1 circumstances then existed and is to be treated like every other finding of the court. It is res judicata or analogous thereto".

Later on in Malik he suggested that the same principles applied to applications to the Crown Court. This is really expressing a similar concept to that which is to be found in section 12C.

6. Perhaps more pertinently in this Court, in The Queen v Tam Ching Shing [1988] 2 HKLR 214 at p 214, Cons VP said :

"A second application is not intended to be an opportunity to put forward submissions which could have been but were not put forward at the earlier hearing, or to put forward the same submissions more persuasively. The court will only reconsider an application in the light of circumstances that have changed since the first hearing".

So it is very easy for me to conclude that on a second application there has to be changed circumstances. It is right to bear in mind that the decision of Kempster JA in this case was given by the single judge pursuant to the powers of the single judge, section 83Y. But it is the decision of a Court of Appeal, and there was no appeal from his decision under section 83Y(3). So I must honour that decision as a decision of the court and not of a single judge. In the light of that consideration what are the fresh circumstances?

7. The first circumstance which has caused a difficulty of definition, is this. Following the hearing before Kempster JA, advice was taken from Leading Counsel in England with the result that fresh grounds of appeal were put before me this morning. It is said that these fresh grounds shed new light upon the position. There is, I think, a difficulty about this proposition. In any case where the main ground of appellate court is necessarily to examine the accuracy and sufficiency in law of the summing uo. Any arguments which are advanced to attack the summing up under either head will very often fall naturally within Cons VP's dicta : "the same submissions being put more persuasively". It is simply another way of grounding an attack upon a summing up. But I think that the Crown in person of Mr Ridgway, was right before me today not to take the extreme viewpoint, that any attack on the summing up at stage one is bound to cover all the ground, and if it does not cover all the ground then it cannot be re-opened. There must be occasions where something quite fresh is picked up in the summing up, which was never really touched upon in the original grounds of appeal before.

8. Subject to that, I think this Court has to look with some circumspection at what is a re-argument of the basic attack on the sufficiency of the summing up, to see if it really constitutes new material or not. I believe that to constitute new circumstances within this broad restriction it must be something new; and it must be something substantial. It must be something convincing; and it must be something which the later judge can be fairly sure was not necessarily overlooked but was not present in the mind of the earlier judge.

9. Now Mr Sceats has taken me most carefully through what he urges is the new material and which be tells me was not specifically argued by him on the first occasion before Kempster JA. The initial point which he takes is an attack upon the trial judge's initial approach. Having dealt with the onus of proof, what appears on p 8 of the summing up is this :

"What does the Crown have to prove beyond reasonable doubt? The offence is in the indictment. I won's read it again. Both counsel have referred to it an you have a copy. But what the Crown have to prove are 3 things :- first of all, that there was an agreement to which Mr Wai was a party and it was an agreement in this case dishonestly to conceal; the second thing they have to prove is that there was an intention to defraud; and the third thing that must be proved is that Mr Wai was dishonest".

10. The principal attack which is now made upon this summing up, as new material, is that there is a fundamental error about that, and that in effect this is not a fair analysis of the indictment on the facts of this case. I am deliberately not going into the arguments that were addressed as to the merits of that proposition, because I find that I am quite unable to accept that this was a point which was not in the mind of Kempster JA when he considered this matter originally. Any Judge considering an application for bail, has to look at the summing up. It can often he very much a matter of first, or in the very long summing up as this is, second impression too, as to whether or not his initial reaction is that the jury were correctly and adequately directed in the circumstances of the case. As far as I was concerned when I read that passage, it did not at once spring to my mind that these ingredients, did not, in the judge's phrasing, correctly constitute a convenient subdivision of the offence with which he was charged. Although I have no doubt that all sorts of arguments can be directed to this, because unfortunately conspiracy to defraud is a branch of the law which admits of every sort of argument, I am by no means convinced myself that this is fundamentally wrong, any more than I am convinced that Kempster J could have not considered this point when the matter was before him.

11. If that point is put upon one side then it does seem to me that all the so-called new material is a going over of matters, which are quite apparent from a reading of this summing up, and which go to the totality of this direction. Therefore on the facts before me I am not convinced that upon that ground there is anything before me which can constitute new circumstances, which I accept must exist before this court re-opens a matter of bail in these circumstances.

12. The second matter which is now relied upon is in fact a new circumstance. It is the fact, that it is now known that the transcript will not be available until March 1989, and that the hearing cannot take place until some date after that it may be May, June or July. The question which arises is whether that fact alone is sufficient to persuade this Court to grant now the application for bail which it refused last September. All I can say about that is this. This is a matter of degree. I do not think that the time now which is likely to elapse between conviction and the hearing of this appeal, is sufficient to justify me today in admitting this applicant to bail.

13. Accordingly this application fails and must be dismissed.