XCHRX HKSAR v. WONG WAI MAN

CACC 249/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 249 OF 1999

(ON APPEAL FROM DCCC 1095-1099 OF 1998)

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R U L I N G

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Leong, J.A. (giving the ruling of the Court):

1. Two considerations arise in an application of this nature.

2. Firstly, whether the sentence the applicant has to serve would by the time of the hearing of the appeal, have been served by the applicant.

3. The answer must be 'no'. He was sentenced to 2 years imprisonment and any reduction in sentence even if it is reduced on appeal, is not likely to be substantial having regard to the recent decision of the Court of Appeal that 18 months imprisonment for an offence of this nature is appropriate. Therefore, it is not likely that by the time this appeal is heard, the applicant would have served his sentence.

4. The second consideration is whether there is any reasonable chance of success. Mr. McCoy, S.C. has put up a point of law which in essence is that on the facts found by the Judge the charge should have been one of procuring. However, the applicant was not charged with procuring. He was charged with the substantive offence. Therefore his chance of success is high.

5. On the other hand, Miss Ko for the government says, if I may put it shortly, as an offence involving triad activities, the Judge's finding that the applicant had procured these members to act as a triad member was in fact a finding that the applicant participated in the activities as a member of triad society. In that way, the Judge had come to a correction conclusion on the evidence. The question is whether or not it was open to the Judge to come to that finding.

6. After considering these two aspects, I do not think it is a case that there is a reasonable chance of success on appeal. In these circumstances the application for bail is dismissed.