WONG SHUN WAH AND ANOTHER v. HKSAR

FACC No. 13 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

 FINAL APPEAL NO. 13 OF 2005 (CRIMINAL)

(ON APPEAL FROM CACC NO. 492 OF 2003)

_____________________

_____________________

_____________________

D E C I S I O N

_____________________

Mr Justice Bokhary PJ:

1.  When ordering the retrial of these two men (whom I will continue to refer to as “the appellants” even though their appeal to us is over), we ordered that, subject to any application made to a single permanent judge of this Court for bail pending arraignment, they be remanded in custody pending arraignment.  By “arraignment” we meant of course the process whereby they are brought before the bar of the retrial court and called by name, the indictment is read out to them and they are called upon to plead to it.

2.  Their arraignment has not yet taken place.  After some initial confusion over procedure on the part of their legal advisers, they now apply to me as a single permanent judge for bail pending their arraignment.  Such bail is not opposed in principle by the prosecution.  But there is the question of the amount of cash bail to be put up by the 1^st appellant.  Pending their first trial these two men had been on bail, the terms and conditions being as follows.  The 1^st appellant provides cash bail of $100,000, surrenders his travel documents, does not leave Hong Kong, and does not interfere with prosecution witnesses.  For the 2^nd appellant the terms and conditions were the same save that the cash bail required of him was only $20,000. 

3.  The prosecution is content that each of these two men be admitted to bail pending arraignment on the terms and conditions on which he had been admitted to bail pending his first trial.  And that is what the 2^nd appellant now seeks.  The 1^st appellant, however, asks that his cash bail pending arraignment be only $50,000.  This is not acceptable to the prosecution, and I have heard argument thereon.  His counsel informs me that the 1^st appellant is able to provide cash bail of $100,000, but seeks a reduction to $50,000 on the ground of hardship.  The problem is that hardship is merely asserted and not supported by evidence.  All things considered, I am not prepared to accede to any reduction. 

4.  In the result, each of these two men is admitted to bail pending arraignment on the terms and conditions on which he had been admitted to bail pending his first trial.  Each man is so admitted to bail pending arraignment.  The question of bail or custody after arraignment will be a matter for the retrial court.