HKSAR v. SIU YAT LEUNG

FOR REFERENCE
HCMP 549/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 549 OF 2002

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REASONS FOR JUDGMENT

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1. This application for bail, which I dismissed with short form reasons at the hearing, has raised significant and previously unresolved questions of jurisdiction under Part 1A Criminal Procedure Ordinance, Cap. 221. I now hand down my formal reasons, in accordance with s11 High Court Ordinance Cap 4.

2. On 11 April 2002, the applicant, who was and is still presently detained in Lai Chi Kok Reception Centre awaiting trial, took out a summons, supported by a short affirmation returnable on 15 April 2002, applying for bail. His application was expressly brought in terms of s.9J Criminal Procedure Ordinance.

3. That section provides:

"Review of refusal of bail or conditions of bail

S9J

(1) Where a District Judge or magistrate has refused to admit a person to bail or has so admitted a person subject to any condition, that person may in the case of a refusal, apply to a judge to be admitted to bail or in the case of an admission to bail subject to any condition, apply to a judge to be admitted to bail without bail being subject to that condition.

(2) On the hearing of an application under subsection (1), a judge may by order confirm, revoke or vary the decision of the District Judge or magistrate, and may make such other order in the matter including an order as to costs as he thinks just."

4. This section gives the Court of First Instance statutory jurisdiction to review, at the behest of a defendant, the decision made by either a District Judge or a magistrate, under s.9D(1) Criminal Procedure Ordinance. The jurisdiction under s.9J is not appellate. The judge of the Court of First Instance must review the matter afresh: s.9J(2).

5. It is apparent that s.9J(1) precludes the judge of the Court of First Instance from reviewing under that section an earlier decision of another Court of First Instance judge made under and in accordance with s.9J. This is consistent with the general common law principle that no court of co-ordinate jurisdiction may sit in review of itself: Re Kray [1965] Ch 736, 745A, per Lord Gardiner LC, Chung Tse Ching v Commissioner of Correctional Services [1988] HKC 251, 255D (CA) per Cons VP. Of course, this does not (outside the s9J jurisdiction) preclude a judge of the Court of First Instance varying, granting or revoking bail which had been earlier granted by the Court of First Instance, if the circumstances warrant that course; that is "for sufficient reason": Chung Tse Ching at 254D-E.

History

6. The applicant is now facing an indictment, dated 4 April 2002, which alleges the serious offences of incitement to rob, contrary to common law and punishable under s.101I Criminal Procedure Ordinance and possession of arms without a licence, contrary to s.13(1) and (2) Firearms and Ammunition Ordinance, Cap. 238. The case, HCCC 109/2002, is pending a trial fixture in this Court.

7. The applicant was arrested on 18 December 2001. An application for bail on 1 February 2002 to a Magistrate was unsuccessful. The applicant by a summons dated 7 February 2002, returnable on 15 February 2002, asked the Court of First Instance, pursuant to s.9J Criminal Procedure Ordinance, to review the decision of the Magistrate. On 15 February 2002 Jackson J refused to grant him bail, because of the strength of the prosecution evidence and the nature and seriousness of the alleged offences.

8. Subsequent to the decision of Jackson J the applicant appeared before a Magistrate on 15 March 2002. He made no application for bail and was remanded to 28 March 2002 for committal proceedings. On that day he was committed to face trial in the Court of First Instance. He made no application for bail.

9. The present application before me is purportedly brought pursuant to s.9J However, this Court cannot review the decision of Jackson J, which was itself a review of the decision of the Magistrate on 1 February 2002. The primary decision of the Magistrate has been reviewed and affirmed. That jurisdiction to review has been exhausted. That primary decision of the Magistrate was made pursuant to s.9D(1). Since the decision of Jackson J, understandably, there has been no application for bail to any Magistrate. I therefore conclude that the present application fails for want of statutory jurisdiction under s.9J(1) Criminal Procedure Ordinance.

Other jurisdiction to apply for bail

10. However, so jealously does the Court inquire into any decision restricting liberty of a person entitled to the presumption of innocence, that the Court on its own motion, nunc pro tunc, amended the summons so that it now sought bail under s.9D Criminal Procedure Ordinance and/or the inherent jurisdiction of the High Court. Since the completion on 28 March of his committal proceedings under Part III Magistrates Ordinance Cap 227, the magistracy has become functus officio and indisputably so by the time of the filing of the indictment, a week later, in this Court.

Inherent Jurisdiction to Grant Bail

11. There can be no doubt that Part 1A Criminal Procedure Ordinance is not a code. Indeed as Dr Robert Sharpe stated (now Sharpe JA in the Ontario Court of Appeal) in The Law of Habeas Corpus, 2nd ed at p. 134.:

"... the summary procedure, designed particularly for the purpose of bail and which is now used in most jurisdictions, is undoubtedly an offspring of habeas corpus. It is really nothing more than a simplified habeas corpus application, and in a sense, all bail applications are rooted in the law of habeas corpus."

Further, it has been said, even in the Victorian era, that it would take unmistakably clear and precise language to abrogate the inherent jurisdiction of the Court of First Instance to grant bail: R v Spilsbury [1898] 2 QB 615, 622 per Lord Russell of Killowen CJ.

12. However, I venture to suggest, that as a matter of constitutional law, because of the overriding imperatives in

(a) Article 28 Basic Law

"The freedom of the Person of Hong Kong residents shall be inviolable.

No Hong Kong resident shall be subjected to arbitrary or unlawful arrest, detention or imprisonment."

and (b) Article 5(3) Bill of Rights, Cap 383

"It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement."

and (c) as a bail application is but a vestigial form of habeas corpus under common law, (see s22A(14) High Court Ordinance and O54 RHC)

this Court could never be lawfully denied, by the Legislature, its quintessential power of adjudication in relation to liberty. That power is self-referentrial of its existence, and the Rule of Law depends on its undiminished virility and muliebrity. The very right to grant bail is innate in a superior court of unlimited jurisdiction: s.3(2) and s.12(3)(a) and (b), High Court Ordinance, Cap. 4. There is, and remains, a general right to bail at common law, independent of statute: Re Wong Tai (1911) 6 HKLR 67, 69 per Sir Francis Piggott CJ. It is a residual jurisdiction and is not therefore parallel to Part 1A Criminal Procedure Ordinance. See also R v Reading Crown Court ex parte Malik [1981] QB 451 per Donaldson LJ, R v Croydon Crown Court ex parte Cox [1997] 1 Cr App R 20 per Pill LJ, Re Di Stefano (1976) 30 CCC (2d) 310, 313 (NWT:SC), Tobin v Minister for Correctional Services (1980) 24 SASR 389, 391-393 (SA: FC).

13. Therefore, in my judgment, in the window of opportunity between the decision of Jackson J under s9J and the completion of the applicant's committal s85A Magistrates Ordinance, although no application had been made to any magistrate, the applicant would have been entitled to apply to this Court for bail under its inherent jurisdiction. However, this Court would have, as a matter of jurisdiction (not discretion) during that period, required the applicant to establish "a material change in relevant circumstances" - the enduring common law test.

Principles at Common Law:Successive Bail Application

14. Until 1994, s.12B Criminal Procedure Ordinance provided:

"12B

If an accused person is refused or denied bail by the court or a judge, he shall not thereafter be entitled to make a fresh application for bail -

(a) before the commencement of his trial, except to the court or a judge and only if he satisfies the court or judge that since the refusal or denial, there has been a material change in relevant circumstances;

(b) during the trial, except to the court conducting his trial."

That section was simultaneously repealed by the enactment of the new Part 1A Criminal Procedure Ordinance.

15. By the former s.12B a further application for bail could not be made without "a material change in relevant circumstances". In my judgment that repealed statutory test was and is declaratory of the true common law position for the determination of a repeated bail application before the Court of First Instance. It would continue to apply to an application for bail to the Court of First Instance brought under the inherent jurisdiction, where there had been a previous decision refusing bail by this Court, under the inherent jurisdiction.

16. Section 9G(11) is essentially an epexegesis of the common law test. This test ensures that access to the Court is not a revolving door. A serious issue of judicial resources arises. Deserving cases may be needlessly postponed by repeated and legally frivolous applications by others for bail. The test is "a sensible and necessary adjunct to a coherent legal system, which would otherwise be prey to a proliferation of speculative bail applications on issues already decided": R v Ng Yiu Fai [1992] 2 HKCLR 122, 125.

Part 1A Criminal Procedure Ordinance Cap 221

17. Part 1A of the Criminal Procedure Ordinance introduced new statutory bail provisions into Hong Kong law.

18. In s.9C "court" is defined as including a magistrate and District Court. Plainly, therefore the Court of First Instance is included in s.9C. But the structure and thrust of the s.9D jurisdiction shows that "court" when meaning the Court of First Instance, only means the Court when not sitting on review under s.9J.

19. Further therefore the statutory restrictions against multiple bail applications in s9G(11), by a person alleging himself entitled to bail, do not apply to a s.9J review, as the s.9G(11) limitations are directed at the primary decision-making court under s9D only and not the Court of First Instance when exercising the review jurisdiction given by s.9J, despite the literal wording in s9G(11) "at any hearing".

s9G(11)

"If at any hearing the court refuses to admit an accused person to bail the court shall, at each subsequent hearing while the accused remains in custody, consider the question of whether or not he ought to be admitted to bail and -

(a) on the first occasion after that upon which the court first refused to so admit, the court shall hear any argument as to fact or law put to it in support of his admission to bail, whether or not it has previously heard that argument;

(b) on the second or any subsequent occasion after that upon which the court first refused to so admit, the court need not hear any argument as to fact or law put to it in support of his admission to bail, if it has previously heard that argument."

s9D(1)(b) Criminal Procedure Ordinance

20. But the present application could be brought properly under s.9D(1)(b) Criminal Procedure Ordinance, as once the indictment has been filed in this Court, it has the trial jurisdiction over the accused and he is therefore now in "the Court before which he is accused". It follows the applicant would now have to qualify under s9G(11) in any further application.

21. How does the present applicant suggest he now qualifies for bail? Under a s9D(1)(b) application the decision-maker is plainly entitled and required to consider all the circumstances, including the previous bail application history. The only different circumstance is that he has now been in custody longer since the hearing before Jackson J and he is much closer to his trial in this Court than he was before. This is a wholly inadequate basis and cannot possibly qualify. Being committed by a Magistrate for trial in the Court of First Instance is not a development in favour of the applicant's position; indeed as it now presupposes the existence of a prima facie case against him of an indictable offence, it may very well be an adverse change of material circumstances. True, a "radical" change in the trial fixture date may qualify: per Bokhary J (as he then was), in R v Chu Kwok Wah, 22 December 1989, HCMP 2006/89, but the allocation of a trial date "after a bail refusal will materially change the circumstances only if the delay to trial is excessive in itself or, if not excessive, then beyond the likely contemplation of the judge refusing bail": R v Ng Yiu Fai at p. 124 - 125.

Disposition

22. Bail refused: applicant remanded in jail custody pending trial in the Court of First Instance.

23. I am grateful to Ms Catherine Ko, Senior Government Counsel, for both the considerable skill and care with which she assisted the Court in this matter.