HKSAR v. THAPA PREMKALA

HCMA 188/2021

[2021] HKCFI 2271

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 188 of 2021

(ON APPEAL FROM KCCC NO 2623 of 2020)

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BAIL PENDING APPEAL:
REASONS FOR DETERMINATION

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Introduction

1.  This was an application for bail pending appeal by Thapa Premkala (hereafter “the Applicant”), following her conviction of a charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210. She was convicted after trial and sentenced to 12 months’ imprisonment.

2.  The Applicant was tried between 15 and 24 March 2021 in the Kowloon City Magistracy. On 24 March 2021, the proceedings were adjourned for verdict. On 31 March 2021, the Applicant was convicted and the proceedings adjourned to pending reports. The Applicant was thereupon remanded in custody. On 14 April 2021, the Applicant was sentenced.  It is to be noted that prior to her conviction, she was on bail.

3.  On 14 April 2021, the Applicant was sentenced to 12 months’ imprisonment.

4.  The Applicant was the 2^nd Accused at trial. The 1^st Accused pleaded guilty and was sentenced to 10 months’ imprisonment.

The case at trial

5.  The essence of the case against the Applicant at trial was that she aided and abetted her co-accused in his act of stealing a smart phone from a sleeping person. The conduct which gave rise to the theft was that the co-accused actually took the smart phone and by the conduct of the Applicant she was aiding and abetting is taking by keeping a lookout. The co-accused of the Applicant pleaded guilty and the trial proceeded against the Applicant.

6.  The prosecution case was essentially uncontested. PW1 and PW2 described the events, the subject of the charge. PW3 was called at the behest of the Applicant to testify that he heard the co-accused assert that the Applicant had nothing to do with the case. The learned Magistrate held that the testimony of PW3 was inadmissible hearsay. Viewed by itself I think that he is undoubtedly right. However, the co-accused testified in support of the Applicant’s case at trial and asserted that she had nothing to do with this matter. The learned Magistrate rejected his testimony. While, with respect, I am not totally convinced by the reasoning given by the Magistrate as to the basis of that rejection, it is arguable that the reported assertion by PW3 of, essentially, the same content whilst inadmissible hearsay to prove the truth of the assertion may have been admissible to bolster the credibility of the testimony of the co-accused. However, that forms no part of my reason for decision in this case. The Judge who hears the appeal against conviction may or may not accord any weight to that proposition.

7.  At trial, the Applicant did not testify. She placed explicit reliance on her previous good character being a mature woman without previous convictions. That was capable of being a weighty matter. While there are many circumstances in which previous good character would not be a weighty matter, in the context of the present case, that is, a case where there was no evidence of actual participation in the taking of the smart phone and a conviction on the basis of inference that the Applicant was an aider and abettor of the theft, her previous good character was at least potentially highly relevant.

8.  On 24 March 2021, the trial against the Applicant concluded. Submissions were made and, so I am told, in closing submissions, counsel for the Applicant placed strong reliance on the previous good character of the Applicant. On no account could it be said that the issue of character was some post-conviction afterthought. Counsel for the Applicant at trial appeared on the application for bail pending appeal and the point was forcefully presented at trial.

9.  On 31 March 2021, the learned Magistrate convicted the Applicant. However, what is significant for the present proceedings is that he gave reasoned and detailed reasons for conviction.

AN APPEAL AGAINST CONVICTION

Notice of Appeal

10.  The Applicant appealed against conviction pursuant to Part VII of the Magistrates Ordinance, Cap 227. She gave a notice of appeal under sections 113 and 114(b).

11.  On 27 April 2021, the Applicant applied for bail pending appeal. In that application, the grounds of appeal are unarticulated.

Principles which inform the grant of bail pending appeal

12.  Section 122(2)  of the Magistrates Ordinance provides that a Judge may, on the application of an Appellant who is in custody, admit the Appellant to bail pending the determination of his appeal or any proceeding therein. Section 122(2)  provides no criteria for the grant of bail. Nevertheless, there are general principles governing the grant of bail pending appeal which inform the discretion given to a judge under this section.

13.  The authorities which consider the discretion to grant bail pending appeal characterised the circumstances in which bail might be granted as exceptional. Generally, two considerations are apposite:

(1)  the Appellant must be a good bail risk on the basis of suitable terms of bail; and

(2)  the circumstances must be such that justice can only be done by the grant of bail: R v Watton (1979)  68 Cr App R 293; HKSAR v Chan Man Chung CACC 87/2000, 26 July 2000.

14.  In relation to the second consideration, the starting point for analysis is that it is for the Appellant to demonstrate that his or her conviction is ill-founded. Accordingly, the Court must consider whether or not to grant bail must determine whether the grounds of appeal compel that conclusion. The other consideration is whether the whole or a substantial part of the sentence of the Appellant might be served before the determination of the appeal.

15.  The standard that the grounds of appeal must attain before bail might be granted has been expressed in various ways. Generally speaking, the Appellant must be able to demonstrate that he or she has a strong prospect of succeeding on appeal and that a consequence of his success is that he or she will be at liberty.

16.  These two considerations interact where the sentence imposed on the Appellant is such that there is a substantial risk that substantial part or all of the sentence might be served before the hearing and determination of the substantive appeal. In HKSAR v Lau Man Kin [2010] 1 HKLRD 336, §8 it was held that in such circumstances the Appellant must demonstrate that there are reasonable prospects of success on appeal. In short, even if the sentence is such that a substantial part or all of it might be served by the time of the determination of the appeal, the Appellant must still demonstrate that the appeal has merit: HKSAR v Wong Hon Ching, San Stephen CACC 547/2003, 7 January 2004.

Statement of Findings

17.  In due course, the learned Magistrate supplied a Statement of Findings as section 114(b)  of the Magistrates Ordinance requires. That section provides:

(b)  when a notice of appeal has been given to the magistrates’ clerk the magistrate whose conviction, order or determination is the subject of the notice of appeal shall prepare a signed statement of his findings on the facts and other grounds of his decision and within 15 days after the day on which the notice of appeal was given cause a copy to be served upon the appellant and respondent and, if he is not the respondent, also upon the Secretary for Justice.

18.  The principal ground of appeal is that the learned Magistrate failed to take into account the previous positive good character of the Applicant and failed to declare that he treated her failure to testify in an appropriate manner. In the Statement of Findings supplied in compliance with section 114(b), there is a statement to the following effect:

7.  In assessing the evidence of the case, I bear in mind that it is the Appellant’s right not to give evidence. No adverse inference shall be drawn by reason of such decision. The Court also well noticed that she was a (sic)  clear record. It is therefore more likely that her case represents the truth, and she has a lower propensity to commit the offence.

19.  It might also be objected that whilst the learned Magistrate noted that the Applicant was of clear record, part of the value of that clear record was that the Applicant was a person of mature age. It has long been recognised that character based on the absence of convictions has more weight in such a person than, say, a person in their teens or early 20s.

20.  Those representing the Applicant obtained from the Magistracy the audio recording of the oral delivery of the reasons given by the Magistrate. There was one omission from those reasons. There was no discussion of the treatment by the Magistrate of the decision of the Applicant not to give evidence and her previous positive good character. In all other respects, as far as I can hear from the audio recording, the balance of the statement of reasons for conviction is careful and considered. Further, the recording is essentially the same as the written Statement of Findings. (There are minor but irrelevant differences.)  The oral reasons articulated by the Magistrate follow the same order as the Statement of Findings but for the omission of paragraph 7.

21.  The significance of that is that nowhere in the oral Reasons for Verdict did the learned Magistrate use the words which appear in paragraph 7 of the written Statement of Findings. It is simply not there. In other words, a paragraph addressing a central tenet of the case for the Applicant at trial was not articulated in the oral reasons given by the learned Magistrate.

A PRELIMINARY EVALUATION OF THE GROUND OF APPEAL

22.  It forms no part of the task of a Judge determining an application for bail pending appeal to determine the appeal itself. However, on the authorities referred to above, it is necessary to evaluate that ground in order to determine whether the application for bail pending appeal meets the criteria established by the authorities. As will shortly appear, there are, conceivably, countervailing arguments to the principal point made by the Applicant. I have outlined those briefly to make the point that it would be open to the Court determining the appeal to view those countervailing arguments differently to the manner in which I view them.

23.  The modern practice of summary trial before a Magistrate under the Magistrates Ordinance is largely to replicate trial before a Judge of the District Court.[1] Critically, in the District Court there is a requirement for a verdict and a statement of the Reasons for Verdict pursuant to section 80 of the District Court Ordinance.[2] The procedure before a Magistrate is, by reference to statute that there may be a conviction and sentence and the obligation to render a Statement of Findings only arises in the event that a notice of appeal against the decision of a Magistrate is filed pursuant to section 114(a). Nevertheless, as far as I can discern, at least so far as summary trials are concerned the practice is to give a reasoned decision. The modern position is summarised in Archbold Hong Kong Criminal Law Pleading Evidence & Practice, 2021 Ed.at §2-28 as follows:

Although it is highly desirable for a magistrate to give some reasons at the time of conviction, there is no constitutional principle or statutory obligation with the effect that the failure to do so vitiates the conviction: HKSAR v Lai Kam Wai (HCMA 538/2008, [2008] HKEC 1799), CFI. See also HKSAR v Chan Ping Sing (HCMA 430/2007, [2007] HKEC 1932), CFI. However, the giving of reasons is part of a fair trial. Judges of the Court of First Instance hearing magistracy appeals have indicated that it is insufficient for a magistrate to say in his oral verdict that he has considered the evidence or he has found the defendant guilty beyond a reasonable doubt. The oral verdict should indicate to the defendant the main points of reasoning of the magistrate, as well as the considerations given to the law and evidence relevant to the case; see HKSAR v Lee Siu Wo [2002] 3 HKLRD 238, CFI; HKSAR v Wong Meng Shun (HCMA 658/2012, 6 June 2013)  CFI.

24.  The authorities also recognise that there are dangers in supplementing such oral reasons as may be given by a Magistrate when he or she determines to convict with further material when an appeal notice is given which triggers the requirement to file a Statement of Findings. In HKSAR v Pang Byron [2013] 3 HKLRD 228. In that case, the Appellant was convicted after trial before a Magistrate of one charge of using a false instrument, contrary to section 73 of the Crimes Ordinance, Cap 200. The particulars of the offence alleged that on or about 10 March 2011, in Hong Kong, the Appellant used an instrument, namely an eyesight examination report dated 3 March 2011 purportedly issued by Dr Tsang Chi Ming, which he knew or believed to be false, with the intention of inducing a member of staff of the Marine Department to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person’s prejudice. On appeal before Beeson J, it was noted that what the Magistrate did in that case was to amplify in the Statement of Findings some of his findings articulated during his oral reasons. It is probably invidious to make a comparison between what was amplified in that case and what was inserted in the present case but the flavour of the matter can be seen at paragraph 57 of the judgement. The appeal in that case was dismissed, but Beeson J observed:[3]

58. I noted the inclusion of the additional material, but ignored it for the purposes of the appeal. Whilst in rare instances it may be necessary or justifiable for a magistrate to deliver full oral findings and later to supplement or correct them in a statement of findings eg to avoid possible confusion on appeal, the practice is neither recommended nor desirable.

59. It can give the impression justified or not that the magistrate is endeavouring to revisit the trial evidence and/or defend or support his original findings with a view to answering possible appeal submissions advanced on behalf of the appellant.

25.  Beeson J makes the point that such practices are undesirable. An appellate court may consider, particularly in the context of a passage which was central to the defence of the Applicant that the omission in the oral reasons was an irregularity and the insertion of a passage in the Statement of Findings was an attempt to revisit the trial evidence and/or defend or support the original findings. This is particularly important given the approach of the Court of Appeal to the absence of an appropriate consideration of good character. In HKSAR v Siti Handayani [2020] 1 HKLRD 496, the Court of Appeal considered the absence of a character direction by the Court of trial as to her credibility (this was a trial on indictment in the Court of First Instance)  in the context of a charge of trafficking in a dangerous drug. There had been a character direction as to the propensity of the Appellant to commit the offence. The conviction of the Appellant depended on inferences being drawn as to her knowledge of the presence of the drugs in question. She gave evidence of her lack of knowledge. The Court of Appeal held that it was important that she have the benefit of a full direction. Pang J, giving the judgement of the Court of Appeal, held that while much depended on the context, in the instant case such a direction was very important.[4] Clearly, context is everything.

26.  In my opinion, the appellate court hearing the substantive appeal might conclude that there is a danger that the learned Magistrate failed to recognise that no adverse inference should be drawn from the failure to testify and that the accused had a previous good character which was relevant to her propensity to commit the crime. The fact that such a passage appeared in the Statement of Findings does, in its context, suggest at least an element of afterthought. I fully recognise at least the possibility that at all material times the Magistrate was fully aware of his obligations in relation to the failure of an accused person to testify and as to the propensity of an accused person who has a hitherto good character. In fairness, such is the almost daily diet of trials in summary proceedings. It is conceivable that the learned Magistrate simply forgot to insert in his oral reasons what he later wrote in his Statement of Findings. Judges do that sort of thing but there is nothing on the record in the instant case to determine whether or not this was the position. It would have been open to him to say precisely that when he inserted paragraph 7 in the Statement of Findings. That is a matter that the appellate court will have to consider.

27.  In determining whether or not to grant the Applicant bail, I did not overlook the power of the appellate court in this context having power to dismiss the appeal despite the apparent irregularity: Ching Kwok Yin v HKSAR (2000)  3 HKCFAR 387, 390. This decision was applied by the Appeal Committee of the Court of Final Appeal in Lo Ho Chung v HKSAR (2001)  4 HKCFAR 319. These principles were recently restated by the Appeals Committee of the Court of Final Appeal in HKSAR v Kong Ho Wing & Ors FAMC 33/2020, [2021] HKCFA 9.

28.  Further, it is conceivable that the appellate court may consider it appropriate to conduct the appeal as a rehearing: Chou Shih Bin v HKSAR (2005)  8 HKCFAR 70; HKSAR v Ip Chin Kei [2012] 4 HKLRD 383, [2012] 4 HKC 135; HKSAR v Fok James Alistair [2015] 4 HKC 247.

29.  Both of the foregoing considerations will very much depend on the evaluation of the appellate court of what I consider to be the potential principal ground of appeal. The primacy of the fact-finding process of the learned Magistrate as the principal tribunal of fact, depending on that evaluation, may compel the appellate court to consider that it would be inappropriate to consider a disposition of the appeal against the contentions of the Applicant based on the propositions articulated in one or other of the preceding two paragraphs. For my part, subject to further detailed argument on the part of the Respondent, that would likely have been my position had I heard the appeal proper.

Other issues germane to the determination of bail pending appeal

30.  The Applicant was sentenced to 12 months imprisonment. That commenced to run from 31 March 2021 because, although the sentence was imposed 2 weeks later, the Applicant had been, on 31 March 2021, remanded in custody. Being a mature person of hitherto good character, I consider that it is reasonably likely that the Commissioner of Correctional Services would to exercise his powers of remission given under the Prison Regulations. That power of remission extends to one third of the sentence imposed by a Court. In other words, the likelihood is that the sentence to be served by the Applicant would be slightly less than 8 months.[5] I am of the opinion that given the current intensive demands on the Court of First Instance in relation to the disposition of appeals against the decision of a Magistrate under Part VII of the Magistrates Ordinance even if the parties are highly efficient in filing the necessary papers under the accepted practices of this Court, it is unlikely that this appeal would be heard until either a very substantial part of the sentence has been served or, alternatively all of that sentence has been served.

DISPOSITION

31.  For the reasons I have articulated, I am of the opinion that there is a substantial risk that a substantial part or all of the sentence might be served before the hearing and determination of the substantive appeal. I am of the view that there is at least a reasonable prospect of success on appeal and, as a result in accordance with the principles articulated in HKSAR v Lau Man Kin [2010] 1 HKLRD 336, §8, the combination of there being a reasonable prospect of success and the length of time which could well elapse before the hearing of the appeal that it is appropriate to grant bail pending appeal. Accordingly, I order that bail be granted upon the terms articulated at the hearing of these proceedings. Further, in order to facilitate the just disposition of these proceedings, I order that a transcript be prepared of the verdict of the learned Magistrate articulated on 31 March 2021.