HKSAR v. LEE TAI HING

CACC 228/2019

[2019] HKCA 1125

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 228 OF 2019

(ON APPEAL FROM DCCC NO 991, 1007-1010 OF 2016)

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BETWEEN

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DECISION

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1.  The Applicant has applied for bail pending appeal. On 23 May 2019 he was found guilty by District Judge Casewell of 4 charges (being Charges 23-26 inclusive) of conspiracy to deal with property known or believed to represent proceeds of an indictable offence, contrary to s.25(1) and (3) of the Organized and Serious Crimes Ordinance Cap.455 and sections 159A and 159C of the Crimes Ordinance Cap.200. He was sentenced on 24 July 2019 to a term of imprisonment of 19 months. He has applied for leave to appeal against conviction

Principles governing bail pending appeal

2.  The court has an unfettered discretion in deciding whether to grant bail pending appeal. It is usually only granted where it appears prima facie that the appeal is likely to be successful. It may also be granted if there is a risk that the sentence will have been served by the time the appeal is heard but the applicant still has to show that he has a reasonably arguable case on appeal (HKSAR v Lau Man Kin [2010] 1 HKLRD 336).

Case

3.  The case against the Applicant was based on statements he made recorded in a police notebook and a Video Recorded Interview (“VRI”) to the effect that he procured bank accounts opened by others (including some other defendants) and related bank materials for the use of another defendant.

4.  At trial, the Applicant who was represented by counsel, challenged the admissibility of the notebook entry and the VRI, on the ground that the statements were not made voluntarily, as he had been offered inducements and threats had been uttered to him. It was also argued at trial that because the caution in the notebook (on p.31) contained the words “唔係唔事必要你講”, the Applicant may have been confused by the “double negative” words 唔係唔事必要你講 into thinking that he was obliged to say something.

5.  The Applicant gave evidence at voire dire proceedings but not on the general issue. He said he was not cautioned at all by the arresting officer. The police officers who made the notebook entry and administered the VRI also gave evidence.

6.  The judge discussed the evidence at §§599-606 of the Reasons for Verdict. He rejected the Applicant’s allegations regarding the voluntariness of his statements. As regards the notebook entry, the judge determined that the error was “typographical” (by which he must have meant “clerical” as the entry had not been typed but had been handwritten). The judge found the statements were made voluntarily and convicted the Applicant.

Grounds of Appeal

7.  In the grounds of appeal dated 18 September 2019 the Applicant set out three grounds. In the first ground, he said the judge simply said that he regarded his evidence as unbelievable and did not say anything more than that. At §604 of the Reasons for Verdict, the judge said the issue was one of credibility between the Applicant and the police officers. After having seen and heard the various witnesses, the judge found the police officers to be credible. The Applicant has not provided any materials before this court which would cast any doubt on the judge’s decision. At this stage I should say nothing more than that I do not find this ground to be reasonably arguable on appeal.

8.  In the second ground, the Applicant relied on the “double negative” error in the notebook entry. The judge was satisfied that it was a clerical error and that the Applicant was entirely aware of his rights. Having considered the unnatural and awkward use of the “double negative” words, it seems to me at this stage that the judge was entitled to make that finding and I do not find this ground to be reasonably arguable on appeal.

9.  In the third ground, the Applicant complains that his counsel was not present during large parts of the trial. This was a trial involving 15 defendants and many charges. The Applicant was charged with 4 charges and the case against him was only based on statements recorded in the police notebook and the VRI. His counsel would not have needed to attend court when the evidence did not relate to the Applicant. In his grounds of appeal, the Applicant has not set out the evidence relevant to his case which had been given at a time when his counsel had failed to attend court.

10.  I am conscious that no date has yet been fixed for the hearing of his application for leave to appeal and that his earliest date of discharge is in June next year. Further in the exercise of my discretion, I have considered what the Applicant has said in relation to his application for rehousing. It seems that even if his personal attendance is required at the Housing Authority, his inability to attend would only lead to delay, but not the termination, of the rehousing application.

11.  In any event I am not satisfied that any of his grounds of appeal have reasonable prospects of success. Accordingly, I reject the application for bail pending appeal.