THE QUEEN v. NG YIU FAI

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H E A D N O T E

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Courts practice and procedure - bail - fresh application after earlier refusal - change in court timetable and whether or not amounting to a "material change in relevant circumstances" in terms of S.12B, Cap. 221. Bill of Rights - whether or not S.12B is repealed by Article 5(3) - submission to that effect rejected.

1992 No. MP1057

IN THE SUPREME COURT OF HONG KONG

CRIMINAL JURISDICTION

MISCELLANEOUS PROCEEDINGS

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R U L I N G

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1. Application is made for bail on behalf of NG Yiu-tai, who awaits trial in the District Court on 10 charges, including blackmail, assaulting a police officer, criminal intimidation, possession of an offensive weapon and theft.

2. This is the second such application, the earlier one being before Leong J. on 16th April this year, when bail was refused. The learned judge's notes disclose his reasons as -

    "Strong likelihood of victims being interfered with and defendant absconding."

3. As this is a fresh bail application after an earlier refusal, Mr. Chandler for the applicant concedes that he must first overcome the obstacle of S.12B of the Criminal Procedure Ordinance, Cap. 221. That section reads:

"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."

It is subsection (a) which is relevant, and this ruling concerns only the issue of the "material change in relevant circumstances" necessary before the fresh application may be entertained.

4. In approaching this issue, Mr. Chandler disclosed that there was no such change in the applicant's personal circumstances. He argued, however, that an intervening change in the timetable leading to the defendant's trial amounted to a material change which triggers the entitlement to the fresh application. Mr. Chandler also argued that S.12B, Cap. 221 is anyway inconsistent with the right to freedom pending trial set out in Article 5(3) of the Bill of Rights and has accordingly been repealed. I shall deal first with the argument of the material change in circumstances represented by the change in the court timetable since Leong J.'s decision.

5. The applicant was arrested on 26th March 1992 and charged one day later. He attended Western Magistracy on 28th March and again on 8th April when, according to his own affirmation, bail applications were refused. He was remanded in custody until 21st April for legal advice as to trial venue. According to Mr. Bailey for the Crown, legal advice on venue was given on 13th April. Thereafter the application to Leong J. for bail was heard on 16th April. Subsequently, and on a date unknown to me, the applicant pleaded not guilty in the District Court and his trial was fixed for 29th October 1992 in that Court.

6. Mr. Chandler argues that the fixing of the datefor trial amounts to a material change in relevant circumstances. He also argues that the allocation of the District Court as trial venue indicates a Crown assessment of the case as less serious than Leong J. may have thought in considering the original bail application. However, this latter argument falls away as the learned judge's very full notes of the hearing disclose his awareness that the case would be tried in the District Court.

7. The argument of a change in court timetable as constituting a material change in circumstances within S.12B was considered by Bokhary J. in The Queen v. Chu Kwok Wah, MP 2006 of 1989. The learned judge was there faced with a fresh application for bail from an applicant whom he himself had refused on an earlier application. In considering the change in the court timetable, Bokhary J. described it as "radical", duly allowed the fresh application, and awarded bail.

8. The facts of this earlier decision must be considered and compared with the circumstances behind the present application. The applicant in the earlier case had been in custody since July 20th 1989 and the first bail application was heard and refused on September 5th 1989. It was at that time expected that committal proceedings would commence on December 15th 1989 and the trial itself in June 1990.

9. The second bail application was heard on December 22nd 1989, by when the committal set for December 15th had been refixed for the end of April 1990. The eventual trial date was then unknown and the learned judge commented that. everyone seemed to think they would be lucky if it commenced by September 1990.

10. Given these factors, the committal date refixed 4 1/2 months later and the trial date unknown, it is unsurprising that Bokhary J. was satisfied that there had been a material change in relevant circumstances. It is equally unsurprising that he found those circumstances so drastically changed that he not only found the onus of S.12B to be fulfilled, but he also granted bail to the applicant.

11. The present applicant's situation is however rather different. The allocation of a trial date has introduced certainty into his expectations rather than otherwise. The trial date is moreover only 7 months after his first arrest and 6 1/2 months after his bail application before Leong J. Whatever Leong J. may have contemplated as the likely length of time to trial, it cannot have been significantly less than the eventuality. He knew it was a District Court case and he would have been aware that 7 months from arrest to trial was as good as could be expected in that court, or indeed in any other. There was therefore nothing in the allocation of a trial date for 29th October 1992 which, had he known it, may have caused the judge to decide differently in the bail application.

12. Mr. Chandler, however, seems to argue that any change in the court timetable after the refused bail application is sufficient to fulfill the circumstances necessary to permit a fresh application. This I cannot accept. Section 12B stipulates a "material change in relevant circumstances". 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. In the present case the date allocated is an early date for trial in all the circumstances and its allocation cannot be adduced as a material change.

13. I therefore reject the applicant's submission in finding that he has not shown a material change in relevant circumstances to found his fresh bail application. I turn to the second limb of Mr. Chandler's submission, namely that the Bill of Rights has caused the repeal of S.12B, Cap. 221.

14. The repeal provision of the Bill of Rights is contained in S.3(2), which reads

"All pre-existing legislation that does not admit of a construction consistent with this Ordinance is, to the extent of the inconsistency, repealed."

The inconsistency argued to repeal S.12B is said by Mr. Chandler to arise from the wording of Article 5(3) of the Bill of Rights. Inter alia, this provides that detention pending trial shall not be the general rule, although release may be subject to guarantees for appearance. This is hardly a novel concept in our law and I venture to say that the provision in itself is merely declaratory of pre-existing common law principles. When harnessed to the repeal provisions, it could however have more serious effects if Mr. Chandler's present argument were to succeed.

15. The evident purpose of S.12B is not to deprive an accused of his right to seek liberty pending trial. It is directed against, a proliferation of bail applications after an initial refusal of bail. Without such a provision bail applications could and probably would be made to successive judges on grounds both speculative and even frivolous. The applicant without a material change in his circumstances would hope eventually to appear before a judge who may view his case more sympathetically than a predecessor. The absence of such a section would invite abuse of the court's process by repetitious applications where the issue of bail had been fully and fairly canvassed already. There is a clearly perceived public interest in preventing such abuse in the manner provided by S.12B.

16. Mr. Chandler has further argued that an applicant with good grounds for bail should not be debarred from further application merely by the terms of S.12B, Cap. 221. This argument is of course ignoring the central issue that this applicant's grounds for bail have already been judicially tested and found wanting. S.12B does not prevent, his raising those grounds, it merely prevents his raising the same grounds twice. Leong J. has evidently considered the bail application with great care, to which his eight pages of detailed notes bear testimony. He has reached his decision after full argument and with representation for the applicant. In the absence of a material change in circumstances, which I have found to be the case, there can be no injustice in disallowing a fresh application.

17. I find that 5.128 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. Moreover the section expressly provides for the rights of the individual in allowing further application on showing a material change in relevant circumstances. It is entirely just and appropriate that there be a judicial evaluation in that area before a fresh application is allowed.

18. I therefore find no inconsistency between the provisions of 2.12B, Cap. 221 and the terms of the Bill of Rights. The submission that the section is repealed therefore fails.

19. In the circumstances of the failure of the two limbs of the applicant's submission, he is not entitled to make a fresh bail application and the matter is concluded.