SECRETARY FOR JUSTICE v. WONG CHI FUNG

CACV 14/2018

[2018] HKCA 670

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 14 OF 2018

(ON APPEAL FROM HCMP NO 795 OF 2015)

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JUDGMENT

(VARIATION OF BAIL CONDITIONS)

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Hon Poon JA (giving the Judgment of the Court) :

A.     INTRODUCTION

1.  Arising from his breaches of an amended injunction order dated 21 November 2014 committed on 26 November 2014, the respondent admitted liability for criminal contempt before Andrew Chan J and was on 17 January 2018 sentenced by the Judge to 3 months’ imprisonment.

2.  By a notice of appeal filed on 19 January 2018, the respondent sought to appeal against the said sentence. On 23 January 2018, the Court of Appeal (Cheung CJHC and Lam VP) granted the respondent bail pending appeal having regard to, among other things, the lack of risk of absconding, on the following terms :

(1)     cash bail in the sum of HK$10,000;

(2)     not to leave Hong Kong;

(3)     surrender all travel documents to the court prior to release from custody;

(4)     to reside at the given address in South Horizons;

(5)     to report to Aberdeen Police Station between 6 pm and 9 pm every Monday;

(6)     to inform Aberdeen Police Station 48 hours prior to any change of residence;

(7)     to undertake to prosecute his appeal expeditiously; and

(8)     to undertake to proceed with his legal aid application expeditiously.

3.  By a notice of motion filed on 21 September 2018, the respondent applies to vary the bail conditions to the extent that he be allowed to travel out of Hong Kong to various cities overseas on different dates :

(1)     London and Birmingham between 29 September and 8 October 2018;

(2)     Geneva between 9 October and 12 October 2018;

(3)     Taipei between 10 November and 12 November 2018;

(4)     Berlin between 15 November and 20 November 2018;

(5)     Washington DC between 1 December and 7 December 2018; and

(6)     Dublin between 14 January and 18 January 2019.

4.  The respondent is willing to provide all his itineraries, setting out the details of his flights to and from Hong Kong and also his accommodation in those cities once they are available.  He is also willing to :

(1)     raise the amount of cash bail to HK$50,000;

(2)     not to leave Hong Kong on dates other than the dates stated above;

(3)     reside at the same given address in South Horizons whenever he is in Hong Kong;

(4)     report to Aberdeen Police Station with detailed itinerary of his flight details and accommodation overseas at least one week prior to his departure from Hong Kong; and

(5)     report to Aberdeen Police Station to collect his travel documents on the day immediately prior to his departure, and report to the same Police Station to surrender his travel documents on the day immediately subsequent to his return to Hong Kong.

5.  The respondent’s application is opposed by the Secretary for Justice.

B.     GENERAL PRINCIPLES

6.  We first state the general principles which guide us in determining the respondent’s application. Although these principles are derived from the law on bail in general criminal proceedings, they are, for obvious reasons, equally apposite to the question of bail in criminal contempt.  In the following statements of principle, the references to “a person convicted and sentenced” or “an appellant” mean a person who has been found to be in criminal contempt of court and has been so sentenced.

7.  A person who has been convicted and sentenced to a term of imprisonment does not have a right to be admitted to bail pending appeal against conviction or sentence.[1]  Whether or not an appellant should be admitted to bail pending appeal and, if so, on what conditions are at the discretion of the court.  Where bail is granted, even when there is no risk of absconding, the court will ordinarily impose conditions requiring the appellant to stay in Hong Kong and as a corollary, not to leave the jurisdiction; to reside at a reported address, which is usually his normal place of residence; to inform the police of any change in that address; and to report to a specified police station on a regular basis.  Being subject to those conditions, the appellant does not enjoy the same extent of liberty and movement as others.  He must accept such restrictions on his liberty and movement when bail is granted to him.

8.  The reporting condition and the two conditions on residence provide the court with an alternative way of keeping a check on the appellant, short of detaining him.  Any non-compliance of those conditions is a serious concern.  The police will take immediate action to locate the appellant or to ascertain his whereabouts.  If necessary, it will also be brought to the attention of the court to see if it needs to revisit the question of bail or vary the bail conditions.

9.  To some extent, prohibiting the appellant from leaving Hong Kong helps to ensure that he would appear at the appeal hearing or that he would surrender to custody when so ordered.  Such a utility aside, two more fundamental policy considerations are at play.

(1)     While his appeal is pending, the appellant remains a person who has been duly convicted and sentenced.  That is his status.  His conviction and sentence are valid and subsisting unless overturned by the appellate court.  That is his legal position.  Both his status and legal position do not change upon the appellant being granted bail.  In the circumstances, it is in the interest of due administration of justice to require the appellant to stay within the jurisdiction for so long as his appeal is pending.  Allowing the appellant unrestricted freedom to leave the jurisdiction as he sees fit and to return if he so desires, when he is no longer an innocent person in the eyes of the law, will clearly undermine the public confidence in the due administration of justice.  To the extent that the appellant is not allowed to travel aboard pending appeal, it is a restriction on his liberty and movement.  But it is a necessary restriction so as to ensure that, in accordance with the interest of due administration of justice, he is not away from the jurisdiction while his appeal is undergoing the judicial process.

(2)     When it is said that there is no absconding risk, it is necessarily an assessment based on the circumstances that were made known to the court at the time of the bail.  However, circumstances may change after bail is granted and if the change is material, the risk of absconding may require a different assessment.  Leaving the jurisdiction is self-evidently a material change of circumstances.  The appellant will then be beyond the immediate reach of the Hong Kong judicial system.  The notion of not returning to Hong Kong to face the possible prospect of an unsuccessful appeal may become tempting. By prohibiting the appellant from leaving Hong Kong, such a possible increase in flight risk is prevented.

10.  With these policy considerations in mind, the court would only allow the appellant overseas travel by varying the very condition which prohibits his so doing in highly exceptional circumstances.  The burden rests squarely with the appellant to persuade the court that the variation sought is well justified.  The court will closely examine the justification advanced by the appellant to see if the burden is discharged satisfactorily.

11.  In the recent case of Secretary for Justice v Wong Ho Ming [2018] HKCFA 14, such an application was roundly rejected by the Court of Final Appeal.  There, the applicant was convicted of unlawful assembly and another offence arising out of a demonstration in the Legislative Council Complex on 13 June 2014.  After dismissal of his appeal, the sentence imposed by the magistrate was increased by the Court of Appeal on a sentence review brought by the Secretary for Justice.  He later obtained leave from the Court of Final Appeal to appeal against the sentence imposed by the Court of Appeal.  Accepting that there was no flight risk, the Secretary did not oppose his application for bail pending appeal.  However, the applicant applied that those usual terms which required him to remain in Hong Kong, surrender his travel documents, report to the specified police station and reside at a reported address, be suspended over a relevant period in July 2018 so that he could attend a certain seminar in Taiwan and stay there for 8 days. That application was opposed by the Secretary.  Ribeiro PJ held at [6] that “grounds for according such special terms of bail to the applicant have not been made out”.  His Lordship then granted bail on terms including those which the applicant sought to vary.

C.     THE PRESENT APPLICATION

12.  Having stated the general principles, we now turn to the present application.

C1.    Delay

13.  We digress to dispose of what appears to be a complaint of delay made by the respondent in his 3^rd affirmation filed in support of his application :

“ 6. …In compliance with my undertakings to the Court of Appeal, I applied for legal aid with all requisite documents expeditiously on 26 January 2018. Regrettably, it took the Legal Aid Department considerable time to process my application. I was eventually granted legal aid on 6 April 2018. After legal aid was granted, I gave instructions to my legal representatives assigned by the Director of Legal Aid expeditiously, and filed a Supplemental Notice of Appeal on my behalf with the Court of Appeal on 12 July 2018.

   7.     Although I acted as expeditiously as I could in the circumstances, the hearing of my appeal against sentence has been set down for 1-day hearing many months later on 3 April 2019.  I had hoped that the hearing of my appeal would take place sooner.  I was, however, disappointed to learn that the hearing of the appeal can only take place on 3 April 2019, which is more than 14 months after the Court of Appeal granted me bail pending appeal, probably due to the need to accommodate the diaries of legal representatives for both parties and the Court.”

14.  This calls for some clarification.  It is true that the appeal would take 14 months to be heard, counting from when the Court of Appeal granted bail to the respondent.  But the proper time for assessing if there was any delay should really begin from the time when the application to fix a date for hearing was lodged with the Court on 12 July 2018, indicating that the respondent was ready to proceed to hearing.[2]  The Court promptly gave listing and further listing directions.  A listing appointment was then scheduled on 1 August 2018.  Following the usual practice of the Court, the first available hearing date was offered to the parties, which was 4 January 2019, about 6 months after the application to fix the hearing date was lodged on 12 July 2018.  As the Court’s diary is extremely busy, a waiting time of 6 months was entirely reasonable.  However, that date was not taken up because the respondent’s counsel was not available.  When a second earliest available date, that is, 8 January 2019, was offered, that was too not taken up because of his counsel’s unavailability.  In fact, the respondent’s counsel was unavailable for the entire month of January 2019.  It was in those circumstances that the hearing date was fixed on 3 April 2019 after the Court and counsel’s diaries were further consulted.

15.  In light of the procedural history, any purported complaint that there is delay in hearing the appeal is ill-founded.  So is any complaint, if made, that the respondent has suffered unfair prejudice as his liberty and movement has been overly restricted while his appeal is pending because of the purported delay in hearing the appeal.

C2.    Prospect of success

16.  At [11] of his 3^rd affirmation, the respondent asked the Court to take into account the legitimate sense of grievance he felt.  By comparing his sentence with those received by other respondents, the respondent believed that, all things considered, he should be treated on a par with the other respondents who had pleaded guilty, and who had apologized unreservedly to the Court, and be sentenced to 4 to 6 weeks’ imprisonment suspended for 12 or 18 months, with additional financial penalty and liability for costs of the proceedings.  What the respondent wished to drive home is in essence the contention that his appeal enjoys a good prospect of success.  In their written submissions, the parties have also gone to some length debating if the respondent’s appeal has a reasonable or good prospect of success.

17.  With respect, what the respondent said at [11] of his 3^rd affirmation and the parties’ debate have both missed the point.  Whether or not the respondent’s appeal has a reasonable prospect was relevant only when this Court considered the question of bail on 23 January 2018, and the Chief Judge had already decided it in favour of the respondent.  The point that we have to decide today is whether despite the policy considerations underpinning the condition prohibiting him from leaving Hong Kong while on bail, the respondent should nevertheless be allowed to do so.  We do not consider the prospect of success of the respondent’s appeal has any significant bearing on the point.  In fact, Mr Lok, SC, for the respondent, concedes in his oral submissions that the merit of the appeal is only of marginal relevance.

C3.    No risk of absconding

18.  Mr Lok SC accepts that, in theory, leaving the jurisdiction may increase flight risks.  However, he argues that it does not arise in the present case.  He emphasises that the respondent has strong ties to Hong Kong; that he lives in South Horizons with his parents and his younger brother; that he studies full-time at the Open University; that he actively participates in political and public life; and that he has complied with all the bail conditions with some minor defaults. And finally, Mr Lok points out that the respondent has the avowed aspiration of running for the Legislative Council.  Mr Chan, APGC (Ag.), for the Secretary, also accepts there is no flight risk.

19.  However, even accepting that there is a lack of risk of absconding and that it will remain to be so if the respondent is allowed to travel, that alone is not sufficient to displace the policy consideration that is based on the interest of due administration of justice, and which prohibits the respondent from leaving Hong Kong while his appeal is pending.  The respondent must satisfy us that there are good reasons for him to attend those overseas events : reasons that are so demonstrably strong or special that the policy consideration should take second place.

C4.    Attending the overseas events

20.  According to the respondent, he has received invitations to go to London, Birmingham, Geneva, Taipei and Berlin to attend conferences, presentations and workshops.  He is keen to attend those events so that he can share his experience and exchange ideas with others who are interested in and/or concerned about the future of Hong Kong.  The other two events in Washington and Dublin are award-giving ceremonies with the respondent as recipient.  The respondent considers it an honour and would like to be able to receive those awards in person.

21.  In our judgment, the respondent has failed to make out a case for allowing him to attend those overseas events while his appeal is pending.

(1)     Given the ease of instantaneous communication via the internet, there is no bar to the respondent participating and contributing to the conferences, presentations and workshops without being physically present.

(2)     We can understand why, to the respondent, the awards to be given him are an honour, and he may find it fitting to attend the ceremonies to collect them in person.  But the desirability of his so doing from both his and the organizers’ perspective does not outweigh the policy consideration, based on the interest of due administration of justice, which prohibits him from leaving Hong Kong while his appeal is pending.  The respondent might feel disappointed for not being able to attend the ceremonies to collect the awards in person.  However, his sentiments must give way to the policy consideration which in the present context is of paramount importance as it concerns the public confidence in the due administration of justice.  Further, the exhibited correspondence suggests that the dates for the ceremonies were fixed in full consultation with the respondent, upon the unwarranted assumption that he could travel to Washington and Dublin at the relevant times.  There is no suggestion that these ceremonies could not take place on some later dates. 

22.  In short, the respondent is seeking to vary his bail conditions to pursue his own affairs overseas, which affairs are not obligatory and can be achieved by alternative arrangements.  It is insufficient to displace the policy consideration based on the interest of due administration of justice that requires him to stay in Hong Kong while his appeal is pending.

D.     CONCLUSION

23.  For the above reasons, the case for affording the respondent the special terms of leaving Hong Kong to attend the overseas events are not made out.  We accordingly dismiss his application to vary the bail conditions.

[1] It is because the presumption of innocence no longer applies in his favour and it is for the convicted person to justify his release on bail : see R v Tam Chun-wah (1976) HKLR 831.  Contrast that with Part 1A of the Criminal Procedure Ordinance, Cap 221 on bail for an accused person; in particular, section 9D which provides that, subject to section 9D and section 9G, a court shall order an accused person to be admitted to bail, whether he has been committed for trial or not when he appears before the court or makes an application for bail.

[2] In passing, we note that the time taken by the Legal Aid Department to process the respondent’s application for legal aid, that is, less than 3 months, is not unreasonably long.