HKSAR v. PAK WING BUN AND ANOTHER

CACC 38/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 38 OF 2017

(ON APPEAL FROM DCCC NO. 980 OF 2015)

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D E C I S I O N

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1.  The 3^rd and 5^th applicants were convicted after trial on 14 February 2017 by District Court Judge Dufton, together with five co‑defendants, of an assault occasioning actual bodily harm to Tsang Kin Chiu on 15 October 2014 (Charge 1). In addition, the 5^th applicant was convicted of the common assault of Tsang Kin Chiu on 15 October 2014 at Central Police Station (Charge 2). The applicants were stipulated as the 3^rd and 5^th defendants on the charge sheet and were referred to by the judge as D3 and D5.

2.  On 17 February 2017, the applicants, together with their co‑defendants, were sentenced to 2 years’ imprisonment for the offence of assault occasioning actual bodily harm.  In addition, the 5^th applicant was sentenced to one month’s imprisonment in respect of Charge 2, which sentence was ordered to be served concurrently with the other sentence of imprisonment.

3.  On 28 and 27 February 2017 the 3^rd and 5^th applicants respectively filed Form XI with the Court giving notice of their applications for leave to appeal against both conviction and sentence.  In his home-made grounds of appeal, the 3^rd applicant complained that the sentence of imprisonment imposed on him was “excessive”, whereas the 5^th applicant said that the sentence was “too long”.

Grounds of appeal against conviction and sentence

4.  On 11 July 2017 the 5^th applicant filed perfected grounds of appeal against sentence settled by Ms Draycott SC.  Complaint was made, inter-alia, that the starting point of 2½ years’ imprisonment stipulated by the judge in respect of Charge 1 was “manifestly excessive”.

Application for bail pending appeal

5.  By summonses filed with the Court on 13 and 11 July 2017 respectively, the applicants seek the grant of bail pending the determination of their appeals by the Court of Appeal.  In addition, each of the applicants filed affirmations with the Court.  Attached to the affirmation of the 3^rd applicant were what were described as “Draft Perfected Grounds of Appeal against Sentence”.  There, complaint was made that the starting point for sentence for Charge 1 stipulated by the judge was “not supported by any authorities”.

6.  In two letters filed with the Court on 12 and 13 July 2017, Ms Clara Ma, for the respondent, informed the Court:

“ Without conceding that the grounds of appeal against conviction and sentence by (the respective applicants) are reasonably arguable, the Respondent submits that there is force in the argument that, for the purpose of the bail pending appeal by (the respective applicants), the application (s) should be disposed of in the same manner as that of D1, D2, D4 and D7 in that if bail is not granted, there is a risk that (the respective applicants) may have served a sentence longer than (they) should have served.

Purely on this basis, the Respondent will not object (to) (the respective applicants) application (s) for bail pending appeal.”

Submissions in support of the applications

7.  In written submissions filed with the Court on behalf of the 3^rd applicant filed with the Court on 13 July 2017, Mr Wong Man Kit SC informed the Court that the application for bail pending appeal was advanced on the basis that:

“ ...the grounds as set out in the draft perfected grounds of appeal against sentence are reasonably arguable but that there is a risk that by the time his appeal is heard, the applicant would have served most, if not all, of his sentence. Additionally, there is also a risk that by the time his appeal is heard the applicant would have served a sentence longer than he need to serve even if his conviction is maintained.”

8.  Mr Wong invited the Court to note that Yeung VP had granted bail pending appeal to the 2^nd, 4^th and 7^th applicants on 28 June 2017 and prayed-in-aid of his application passages in the reasons for the decision of Yeung VP.

9.  In granting those applications, Yeung VP said of their applications for leave to appeal against sentence:

“ The maximum sentence for an offence of assault occasioning actual bodily harm is three years’ imprisonment (s 39 of Offences against the Person Ordinance, Cap 212, Laws of Hong Kong).

Without in any way underestimating the seriousness of what the applicants and his colleagues did, it is, in my view, highly arguable that the 2½ year starting point, 6 months off the maximum sentence, adopted by the judge is manifestly excessive and that a significantly lower starting point should be adopted.”

10.  Of the processing of the applications for leave to appeal, Yeung VP said:

“ The application for leave to appeal has yet to be set down for hearing before a single judge of the Court of Appeal.”

Pausing there, that remains the position today in respect of those three applicants.

11.  Yeung VP went on to note:

“ Bearing in mind the number of defendants, the length of the trial, the length of the judgment and the voluminous transcripts and documents involved, it is unlikely that the appeal proper can be dealt with within the next 6 to 9 months by which time, the applicant would have completed a major part, if not the entirety of the 2 years’ imprisonment.

Unless granted bail pending appeal, there is also risk that the applicants would have served a sentence longer than they need to serve even if the convictions are maintained.”

12.  On 6 July 2017, having adverted to those observations of Yeung VP, I granted bail pending appeal to the 1^st applicant.  In doing so, I observed that the respondent’s decision not to oppose the application for the grant of bail pending appeal on the basis articulated in their letter was “entirely realistic and most sensible.”  I make the same observation in respect of these applications.

Conclusion

13.  In all the circumstances, I am satisfied that it is appropriate to grant the applicants bail pending the hearing of their appeals.  The applicants are granted bail on their respective undertakings to comply with the directions of the Court to attend any and all hearings of their applications for leave to appeal against conviction and sentence and on the following terms, namely that:

the 3^rd applicant:

•   deposit with the Court $50,000 in cash;

•   a deposit with the Court by an approved surety of $50,000 in cash;

•   surrender to the Court all his travel documents, save for his Hong Kong Identity Card;

•   undertake not to leave Hong Kong, without the prior permission of the Court; and

•   undertake to reside at the address given to the Court.

the 5^th applicant

•   deposit with the Court $100,000 in cash;

•   surrender to the Court all his travel documents, save for his Hong Kong Identity Card;

•   undertake not to leave Hong Kong, without the prior permission of the Court; and

•   undertake to reside at the address given to the Court.