THE QUEEN v. ENG BOUY

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JUDGMENT

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1. This is an appeal against an order of the High Court forfeiting a sum of $100,000 cash bail. which was deposited for the attendance of an accused person for trial.

2. The first question which arose upon the hearing was whether the case, which was brought in the criminal jurisdiction of this court, was properly so brought. It is agreed by counsel, and we are agreed now, that it was not correct to bring it in the criminal jurisdiction. This is in the nature of a civil matter, the debt being a civil debt owed to the Crown. There is authority in England, which we accept, that estreatment of bail does not arise out of a criminal cause or matter: we were referred to Reg. v The Southampton Justices ex parte Green 1976 Q.B. p.11. The same principle was stated in Reg. v Marlow Justices ex parte O'Sullivan at 1984 2 W.L.R. 107, where it was held that the civil standard of proof applied upon a breach of a bond to keep the peace and be of good behaviour. We therefore hold that in future any appeal against a decision forfeiting a recognizance should be brought in the civil jurisdiction. However, we thought that in the circumstances - the matter not having been the subject of authority in Hong Kong - we ought to proceed to hear the matter forthwith, and we have done so.

3. The position is that the accused person was on three. charges - manufacturing dangerous drugs, possession of dangerous drugs for the purpose of unlawful trafficking and trafficking in dangerous drugs. The Appellant is related to the Accused through the same grandfather. She, a divorced woman who has custody of three children aged between 9 and 15 who are all at school, was persuaded by relatives to put up the sum of $100,000 cash bail. The security was delivered on 2nd May 1986, the indictment having been laid on 9th April. The Accused was under order to report at a police station twice a day. The surety contacted the Accused every day until 30th July. On 30th July she failed to contact him. She therefore on 31st went in search of him and, being unsuccessful, went to the police station. The Defendant had reported until that day but he failed to report twice on that day, and thereafter, and he failed to attend the pre-trial review which was fixed on 1st August. The matter was adjourned and he again failed to appear on 4th August, the date of the adjourned hearing.

4. As I have indicated; this is the first time that the matter has come by way of appeal to his court, but another division was concerned with a failure by an appellant to appear at the hearing of his appeal in Reg. v KEUNG Cam-yuen Crim. App. 1985 No.527. That also was a case where cash. was deposited. The provision for cash bail is provided in s. 13AA of the Criminal Procedure Ordinance. Sub-section (1) permits the court to direct cash bail: sub-s. (2) reads:

"If a person admitted to bail does not appear at the time and place required by the court, a court may order any sum deposited pursuant to an order under subsection (1) to be forfeited and may issue a warrant for the arrest of that person."

In Reg. v KEUNG Cam-yuen Silke, J.A., delivered the judgment of the court, reviewed the English cases on the subject, including the latest one, which is Reg. v Waltham Forest Justices, ex parts Parlrey 1983 1 All E.R. 530, and he cited from the judgment of Donaldson, L.J. (as he then was). I shall not repeat the passage, but we accept that it states the law which is applicable.

5. The position here is that the Applicant apparently had to borrow part of the money which she advanced, but that is the only matter which affects the financial position. This is not a case where we think that her financial circumstances are material. Her obligation was to pay $100,000 if the Defendant did not appear for trial. However, we think that the learned judge did not consider adequately, if at all, the circusmtances attending her attempts to secure the attendance of the Defendant at trial. He merely made an order and did not give any indication of the reasoning behind his decision. In a case of this kind we think that it is incumbent on a judge to give some reason why he thinks that the whole of a sum should be forfeited. We are satisfied that the Appellant, having made some serious attempts to carry out her obligations under the order, is entitled to some relief under s. 13AA, and we are satisfied that there is power to remit part of the sum deposited. We think that the proper order is that the order of the forfeiture shall be discharged to the extent of 50% - she shall pay $50,000 out of the $100,000 - and we so order.

6. The appeal is allowed to that extent.

26th September 1986