HKSAR v. LAU MAN KIN

CACC 236/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 236 OF 2009

(ON APPEAL FROM DCCC NO. 1159 OF 2008)

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REASONS FOR DECISION

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1.  This is the 3^rd defendant Lau Man-kin’s application for bail pending appeal.  He was convicted after trial of a conspiracy to defraud.  The amount involved was USD500,000.  The offence allegedly took place between 1 March 1999 and 31 May 2000, and came to light in 2000.  However, the defendants were only charged in 2008.  District Judge Yuen adopted a starting point of 3½ years and gave the defendant a 70% discount for the delay in his prosecution and sentenced him to imprisonment for 12 months.  Leave has been granted to review the sentence.

2.  No date has yet been fixed for the hearing of the appeal.  On the present sentence, the applicant would have served his entire sentence by 5 February 2010.

3.  The application is made on the basis that the applicant has good prospect of success in the appeal (the merits ground), as well as that by the time the appeal is likely to be heard, he would have served his sentence (the time ground).  I have granted bail on the time ground.

4.  The leading decision in Hong Kong is the decision of Bokhary JA (as he then was) in R v Oscar Lai Ka To, unreported, CACC 229/1992, dated 14 September 1993.  There Bokhary JA said bail pending appeal is exceptional and generally speaking, bail pending appeal should only be granted where it appears that the appeal would be successful or where there is a risk that sentence will have been served by the time the appeal was heard.  That was also the English practice.  See R v Watton [1978] 68 Cr App 293.

5.  However, Cons VP in R v Tam Chung-sing [1988] 2 HKLR 214, and Bokhary JA in Oscar Lai Ka To granted bail on the time ground although in those cases, the applicant would have served only a substantial part of their sentences by the time their appeals could be heard (2/3 or 1/2 respectively).  So the statement in Archbold Hong Kong 2010 at 3-119 that:

“The Court of Appeal adopted a more generous approach to bail pending appeal to that adopted in Watton” 

is correct.

6.  Of course as Bokhary JA said in Oscar Lai Ka To, bail pending appeal is not practically inevitable even in cases of relatively short sentences.  That is why, for example, in HKSAR v Kwok Chi Fai, CACC 473/2000, unreported, dated 20 December 2000, Stock JA refused bail because the prospect of success was negligible, although the applicant would have served a substantial part of his sentence before the appeal could be heard. 

7.  Section 83R of the Criminal Procedure Ordinance, Cap. 221 gives power to this court to grant bail pending appeal “if it thinks fit”.  As Bokhary JA has explained in Oscar Lai Ka To, the jurisdiction of this court to grant bail pending appeal is not fettered.  Naturally the discretion must be exercised judicially and the court should only grant bail when it is just to do so.  After conviction, bail would be the exception rather than the rule. 

8.  Ms Wong for the respondent has submitted that even when an application for bail is made on the time ground, bail should not be granted unless the applicant can show that the appeal is highly likely to be successful.  With respect, I do not agree.  The submission is contrary to authority.  The right to appeal (and an application for leave to appeal is effectively the appeal) must not be rendered illusory.  That does not mean in a case where the appeal is unlikely to succeed bail should nevertheless be granted.  That would encourage unmeritorious appeals and is not conducive to good administration of justice.  In a case where the appeal is reasonably arguable.  I believe bail may be granted on the time ground as explained above.

9.  In this case, bail was not opposed on the ground that there is a real risk of the applicant absconding.  In cases where short sentences are involved that risk is often quite low.  That may be a reason why bail pending appeal may be granted on the time ground alone.  Where a long sentence is involved there is of course a greater risk of the applicant absconding.  Also in such cases, in the event of actual abscondment, the adverse impact on the due administration of justice (including, respect for the rule of law and its effective administration) will be severe.  That may be why in such cases bail pending appeal would be refused unless the appeal has a high chance of success.