HKSAR v. ASIM NADEEM

DCCC 173/2017

[2018] HKDC 166

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 173 OF 2017

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RULING

1.  On 4 October 2016 a magistrate granted bail to Asim Nadeem (D4), a Form 8 holder. Bail conditions included the payment of $50,000 cash bail and a cash surety in the sum of $50,000. Mr Khawaja Muhammad Kamran, who was approved as the surety, deposited the sum of $50,000 on the same day. Other bail conditions included daily reporting to a police station between 6-9 p.m.

2.  Bail was last extended on 21 August 2017 with the next court hearing on 22 January 2018.  Mr Khawaja signed agreeing to continue acting as a surety for D4.  D4 failed to attend on 22 January, the first day of his trial. 

3.  Mr Arthur informed the court that D4 last reported to the police station on 14 November 2017 and that the police visited his address but were unable to locate him. 

4.  The trial was adjourned to 24 January 2018.  D4 and the surety failed to attend court on 24 January.  Mr Arthur informed the court D4 last reported to the Immigration Department on 6 November 2017 having failed to report on 4 December 2017. 

5.  A warrant was issued for the arrest of D4.  The 7 February was fixed for the surety to show cause why his recognizance should not be forfeited.  The trial of the remaining defendants was further adjourned to 29 January 2018. 

6.  After the hearing on 24 January the Urdu interpreter informed the court clerk that he had seen the surety on 22 January.  Regrettably this was not brought to my attention on that day. 

7.  On 29 January D4 did not appear and had not been located by the police.  Mr Khawaja attended court.    I explained to Mr Khawaja the procedure regarding forfeiture of the $50,000 taken as surety for D4 and asked if he wished to seek legal advice.  Mr Khawaja asked for 1-2 weeks to seek legal advice.  I adjourned the hearing to 7 February.

8.  On 7 February Mr Khawaja informed the court he had not sought legal advice but had spoken to a friend who helped him write a letter, the contents of which I have considered[1]. Mr Khawaja said he did not require any further time to seek legal advice.

9.  Where a person admitted to bail fails, without reasonable cause, to surrender to custody as shall have been appointed, a court may order that the whole or part of any recognizance of bail taken from a surety and any sum of money deposited for the purpose of securing his surrender to custody shall be forfeited to the Government[2].

10.  As of 7 February D4 had not been located by the police.  I am satisfied D4 has shown a clear intention not to attend his trial and had no reasonable excuse for not attending.  I therefore order his cash bail of $50,000 be forfeited.

11.  The provision of a surety is for the purpose of securing the surrender of a defendant to custody as the court may appoint.  The starting point on the failure to bring a defendant to court is the forfeiture of the full amount paid by the surety unless it appears fair and just that a lesser sum should be forfeited or none at all.  Instances where the monies are not forfeited will however be rare.  

12.  The burden of satisfying the court that the full amount should not be forfeited rests on the surety.  It is a heavy burden for the surety to establish there are grounds upon which the court may order a lesser sum to be forfeited.  The absence of culpability on the part of the surety is not of itself a reason not to order forfeiture[3].

13.  Mr Khawaja gave evidence on 7 February.  In summary Mr Khawaja told the court that prior to November when D4 suddenly disappeared he had been chasing D4 to attend court and that D4 did in fact attend court in the past[4].

14.  Mr Khawaja explained that whenever he saw D4 he would remind him to go to court and to report to the police.  Mr Khawaja says he attended the police station once or twice with D4.

15.  Mr Khawaja said he could only warn D4 to attend court and the police station.  

16.  Mr Khawaja found out that D4 had disappeared at the end of November when he went to Sham Shui Po.  Friends of D4 told him D4 had disappeared.  Mr Khawaja says he last saw D4 in early November and last spoke to him, also in early November.  Between early November and the end of November Mr Khawaja says he was too busy to contact D4.

17.  On this evidence I am satisfied Mr Khawaja has failed in his duty to fulfil the obligations undertaken as a surety.  To simply warn D4 to attend the police station and to attend court is in my view not sufficient.  In the material time when D4 disappeared Mr Khawaja had little, if any contact with D4. 

18.  I have also considered the financial means of Mr Khawaja, who borrowed money when he moved home with the expectation he would be able to repay from the surety money. 

19.  Whilst the forfeiture of the money will no doubt cause hardship to Mr Khawaja and his family, I am satisfied this is not very great hardship or undue hardship.  Mr Khawaja is in work buying second hand mobile phones earning on average $15,000-$16,000 per month.

20.  I find Mr Khawaja has failed to establish any grounds upon which I can order a lesser sum to be forfeited.  Mr Khawaja may well not have expected D4 to disappear however by agreeing to be a surety he knew the risks involved.  I am satisfied this is not one of those rare cases where no order for forfeiture should be made or forfeiture of a lesser sum.  The sum of $50,000 deposited by Mr Khawaja is forfeited.