PETER GERARDUS VAN WEERDENBURG v. HKSAR

FAMC No. 44 of 2010

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 44 OF 2010 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACC NO. 167 OF 2008)

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D E C I S I O N

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Mr Justice Bokhary PJ :

1.  Depending on the matters to be dealt with, the judicial functions of the Court of Final Appeal are performed by either the Registrar, a single Permanent Judge, the Appeal Committee or the Court itself as fully constituted by a panel of five.  A single Permanent Judge has jurisdiction to admit an applicant to bail pending a determination by the Appeal Committee of an application for leave to appeal to the Court of Final Appeal.  This jurisdiction will be exercised only in wholly exceptional and therefore extremely rare circumstances.  I am now asked to exercise this jurisdiction.

2.  On 24 April 2008 the applicant was convicted by His Honour Judge Browne in the District Court on five charges of conspiracy.  And he was remanded in custody pending sentence.  Prior to his being so remanded, he had been on bail since his arrest two years earlier.  And during that two-year period he had travelled in and out of Hong Kong.  On 9 May 2008 he was sentenced to a total of 3 years and 9 months’ imprisonment.  He then appealed to the Court of Appeal against his conviction.  That appeal was heard by Mr Justice Hartmann JA, Mr Justice McMahon and Mr Justice Lunn from 15 to 22 March this year.  Judgment was reserved.  At the conclusion of that hearing and on the day on which it concluded, Mr Justice Hartmann JA admitted the applicant to 21 days’ bail, on two sureties of $100,000 each, for him travel to Australia in order to visit his terminally ill brother.

3.  Thus admitted to bail, the applicant left Hong Kong for Australia on 28 March this year and returned to Hong Kong from Australia on the 18^th  of the following month.  Upon his return, he duly reported to the Independent Commission Against Corruption, and went back to prison.

4.  On 20 May this year, the applicant was released from prison on parole subject to supervision, the supervision to last until 19 November this year.  Then on 31 May this year, the Court of Appeal gave judgment affirming all the applicant’s convictions, one of them unanimously and four of them by a majority, Mr Justice McMahon dissenting.

5.  There is now pending an application by the applicant to the Appeal Committee for leave to appeal to the Court of Final Appeal against the four of his convictions which the Court of Appeal affirmed by a majority.  As for the other conviction, he has already served his sentence on it.  His leave application, which was launched by a notice filed on 25 June this year, will be heard by the Appeal Committee on the 16^th of next month.

6.  Sadly the medical condition of the applicant’s brother has now, as his doctor certified on the 10^th of this month, so deteriorated that he is on full palliative care, and it is anticipated that he will shortly slip into a coma and die soon afterwards.  He is living in his mother’s house.  There is no plan – for there seems to be no point – for him to return to hospital.

7.  Naturally the brothers wish to see each other one last time.  In order to go to Australia for that purpose, the applicant requires bail pending his leave application.  This is because, although he has been released from prison, such release is on parole and subject to supervision.  The supervision order includes a requirement as to residence and a requirement that the applicant shall not travel outside Hong Kong without the prior permission of his supervising officer.  If I grant the applicant bail, such grant of bail will of course override any requirement in the supervision order that may otherwise impede his travelling to Australia.

8.  The applicant is married.  His wife and children live in Hong Kong.  She works.  The children attend school.  The applicant has found employment.  He has deposed on affidavit – and I have no reason to doubt – that he intends to rebuild his career and family life in Hong Kong.  If he is granted bail to travel to Australia, his wife will accompany him on such trip while the children remain in Hong Kong under the care of their maternal grandmother.  He asks for bail on the conditions that he returns to Hong Kong by the 15^th of next month at the latest to resume parole under supervision, that he be present at the hearing of his leave application and that he puts up $100,000 by way of cash bail.

9.  As to the merits of the leave application, I say no more than that it has been accorded an oral hearing rather than being dismissed on paper under rule 7 and has the wind of a dissenting judgment in its sails.

10.  Are the circumstances of the present case so rare and exceptional as to warrant bail pending the determination by the Appeal Committee of the applicant’s application for leave to appeal to the Court of Final Appeal?  In my view, they are.  There is no real risk of absconding and there is good reason to grant bail.  It is granted on the conditions to which I have referred, being: return to Hong Kong by the 15^th of next month to resume parole under supervision; presence at the leave application; and $100,000 cash bail.  These conditions are appropriate.  That this meritorious application has succeeded should not be taken as encouragement to bring unmeritorious ones.  The fate which unmeritorious ones can expect to meet is a refusal to accept filing or, if filing has been undeservedly obtained, a refusal to list for hearing.  Any such refusal will be by the Registrar on the direction of a single Permanent Judge.