HKSAR v. MUHAMMAD, QASIM

HCMP 161/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 161 OF 2017

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REASONS FOR DECISION

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1.  This is a bail application by the applicant Muhammad Qasim. At the end of the hearing I granted bail with conditions imposed. Here are my reasons.

Background

2.  The applicant faces one charge of Wounding with intent, contrary to section 17 of the Offences Against the Person Ordinance, Cap 212.  

3.  The defendant was brought up before a magistrate in the Kowloon City Magistracy (KCM) on 11 January 2017.  The case was adjourned to 17 January 2017, pending further investigation and for the victim (PW1) to attend an Identification Parade (ID Parade).  PW1 was out of town and did not attend the ID Parade as anticipated.

4.  On 19 January 2017, when the applicant was brought (before another magistrate) at KCM for mention again, CCTV footage which the defence said captured the applicant being in Yuen Long at the time of the offence (which took place in Hung Hom) was viewed by the magistrate, and two defence alibi witnesses also gave evidence in support of the bail application.  The magistrate considered it inappropriate to make a ruling regarding the reliability of the two witnesses as it might affect the final verdict.

5.  The applicant’s bail application was refused and the applicant made an application for bail before me.

Prosecution case

6.  The prosecution case was that on 2 January 2017, at around 8 pm, two persons (PW1 and PW2) were walking on a street in the Hung Hom area when the applicant, together with two other persons, attacked PW1 with the cutters held in their hands.  PW2 was pushed aside during the attack.  All three ran away after the attack and PW1 was sent to hospital for treatment.

7.  The applicant surrendered to the police on 8 January 2017 and was arrested.  On 10 January 2017, PW2 positively identified the applicant as one of the assailants during an ID Parade.  PW1 has yet to attend an ID Parade.

The applicant’s position

8.  The applicant is a Pakistani “torture claimant” holding what is known as a “Form 8” Recognizance.

9.  Mr Kevin Egan, who represents the applicant all along, informed me that the applicant, upon learning that the police was looking for him, surrendered himself at the police station.  When interviewed under caution, he denied involvement and claimed that he was physically at a place in Yuen Long at the time.  The police then went to the place in question and obtained footages of the relevant time captured by the CCTV.  A copy disc was given to the defence.  Mr Egan submitted that the applicant could clearly be seen appearing at the place in Yuen Long during the time when the attack on PW1 took place in Hung Hom.  The copy disc was played before the magistrate at KCM but bail was still refused.

10.  The disc was played before me and I can see a person, who looks very much like the applicant, appears together with another person (whom I was informed had given evidence before the magistrate).  That person was present for me to compare his appearance with that captured by the CCTV.

11.  I did not find it necessary to receive any oral evidence from any witnesses in relation to what was captured by the CCTV.

12.  I should add that the respondent agreed that it was indeed the police who had gone to obtain the CCTV footages and passed a copy to the defence.  There is no suggestion that the footages on the copy disc played in the court had been tampered with.

Legal principles on bail

13.  It is useful to reiterate the legal principles on the issue of bail.

14.  The Hong Kong Bill of Rights Ordinance, Cap 383 applies the International Covenant on Civil and Political Rights (ICCPR) to Hong Kong.  Article 5(1) of the Ordinance provides:

“(1) Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”

15.  Article 5(3) provides:

“(3) Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. 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 judgment.”

16.  Section 9D of the Criminal Procedure Ordinance (CPO), Cap 221 provides:

“(1) Subject to this section and section 9G, a court shall order an accused person to be admitted to bail, whether he has been committed for trial or not, when-

(a) he appears or is brought before a court in the course of or in connection with proceedings for the offence of which he is accused; or

(b) he applies to the court before which he is accused to be admitted to bail; or

(c) he applies to a judge under section 9J to be admitted to bail.

(2) An order under subsection (1) may be subject to such conditions as appear to the court to be necessary to secure that the person admitted to bail will not-

(a) fail to surrender to custody as the court may appoint; or

(b) commit an offence while on bail; or

(c) interfere with a witness or pervert or obstruct the course of justice.”

17.  It can be seen that bail pending trial is an inherent right and being released on bail should be the norm, rather than the exception. 

18.  Secton 9G of the CPO provides:

“(1) The court need not admit an accused person to bail if it appears to the court that there are substantial grounds for believing, whether or not an admission were to be subject to conditions under section 9D(2), that the accused person would-

(a) fail to surrender to custody as the court may appoint; or

(b) commit an offence while on bail; or

(c) interfere with a witness or pervert or obstruct the course of justice.

(2) The court in forming an opinion under subsection (1) may have regard to-

(a) the nature and seriousness of the alleged offence and, in the event of conviction, the manner in which the accused person is likely to be dealt with;

(b) the behaviour, demeanour and conduct of the accused person;

(c) the background, associations, employment, occupation, home environment, community ties and financial position of the accused person;

(d) the health, physical and mental condition and age of the accused person;

(e) the history of any previous admissions to bail of the accused person;

(f) the character, antecedents and previous convictions, if any, of the accused person;

(g) the nature and weight of the evidence of the commission of the alleged offence by the accused person;

(h)   any other thing that appears to the court to be relevant.”

19.  As to the proper approach to objections to bail, imposition of condition and so on, a useful summary can be found in Archbold Hong Kong 2017 (para 3-29):

“Proper approach to objections to bail, imposition of conditions, etc

As bail is a right, it is for the prosecution to show that bail should be denied in the particular case.  The words ‘substantial grounds for believing’ in section 9G indicate that the prosecution must show much more than a fanciful belief or a fear that the accused will not answer to bail.  The strict rules of evidence are inherently inappropriate where a court has to decide whether there are substantial grounds for believing something: see Re Moles [1981] Crim L R 170 and R v Mansfield JJ, Ex p Sharkey [1985] QB 613, DC.  The correctness and practicality of this approach is re-iterated in R v Lau Ting-fan (1992) 2 HKPLR 1. … In Ex p Sharkey, above, it was held that the test for imposing a condition on the grant of bail under section 3(6) and paragraph 8 of Part I of Schedule 1 of the Bail Act 1976 was whether the court perceived a real risk of one of the specified events occurring.  The burden of putting sufficient material before the court to meet that criteria is upon the prosecution. …”

20.  Bail may be refused if there are substantial ground for believing that the accused will fail to surrender to the bail, or commit an offence while on bail, or interfere with a witness or pervert or obstruct the course of justice (section 9G(1)). The matters to be considered by the court in forming its view are set out in section 9G(2).

21.  Bail can only be refused in the circumstances set out in section 9G.  Assertion by the prosecution that the offence is serious; that there is a long history of offending; that the accused will face a long term of imprisonment and so on are not valid objections to bail, they are matters which may go to the belief that the accused will fail to surrender.

Prosecution’s objection to bail

22.  The prosecution submitted that the evidence against the applicant is strong: the applicant was positively identified by PW2; the CCTV footages obtained by the police are not of high quality and the images therein are non-conclusive; the evidence of the defence alibi witnesses should be tested at trial; and the applicant will likely be sentenced to a lengthy sentence if convicted.  The prosecution submitted there are substantial grounds for believing that the applicant would fail to surrender to custody as the court may appoint and a risk of interfering with PW1 and PW2.

My consideration of the issue

23.  The prosecution case relies heavily on the correctness of the identification by PW2 of the applicant being one of the culprits.  It is unknown at present whether PW1 will also identify the applicant as one of the culprits. 

24.  As to the identification of the applicant by PW2, whether the quality of the identification evidence is sufficient to establish the applicant’s guilt remains to be seen (see R v Turnbull [1977] QB 224).

25.  Contrary to what the respondent asserts, the quality of the CCTV footages is one of the best I have seen.  I can see a person who looks very much like the applicant appearing there.  According to the time recorded, the person who looks very much like the applicant was physically in Yuen Long when the attack on PW1 took place in Hung Hom.

26.  As there is no suggestion that the footages on the copy disc had been tampered with, and the mounting of the CCTV to capture what was happening at that particular place in Yuen Long is independently done by someone other than the applicant, there is independent credible evidence which throws doubt on the correctness of the identification evidence by PW2.  That being the case, the prosecution case against the applicant is not as strong as the respondent claimed.  The risk of the applicant failing to surrender to his bail is correspondingly low. 

27.  The prosecution has failed to demonstrate there are substantial grounds that the defendant will fail to answer bail. 

28.  As to the risk of interfering with prosecution witnesses, that could be addressed by imposing a condition prohibiting the applicant to contact PW1 and PW2 directly or indirectly.

Conclusion

29.  For the reasons stated, I granted the applicant bail (with conditions attached).