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Hksar v Choi Hoi Ming

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
Judgment Date24 February 2021
Neutral Citation[2021] HKCFI 404
Year2021
Judgement NumberHCCP45/2021
Subject MatterMiscellaneous Proceedings (Criminal)
CourtCourt of First Instance (Hong Kong)
HCCP45/2021 HKSAR v. CHOI HOI MING

HCCP 45/2021

[2021] HKCFI 404

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS (CRIMINAL) CASE NO 45 OF 2021

________________________

BETWEEN

HKSAR Respondent

and
CHOI HOI MING (蔡凱明) Applicant

________________________

Before: Deputy High Court Judge Bruce SC in Chambers

Date of Hearing: 4 February 2021

Date of Ruling: 4 February 2021

Date of Reasons for Ruling: 24 February 2021

_________________________

REASONS FOR RULING

_________________________


Introduction

1. Mr Choi Hoi Ming made an application to review of the refusal by Mr David Cheung Chi Wai, sitting as a Permanent Magistrate sitting at the Kwun Tong Magistracy to grant bail to Mr Choi. Mr Choi is hereafter referred to as “the Applicant”. The learned Magistrate refused to grant the Applicant bail on 18 January 2021. The learned Magistrate did so on the grounds that he had substantial grounds for believing that the Applicant would fail to surrender to custody as the Court may appoint. The proceedings against the Applicant were adjourned to 29 March 2021.

2. The review is brought pursuant to section 9I of the Criminal Procedure Ordinance, Cap. 221. The matter came before me on 4 February 2021 on that review. The Applicant was represented by Ms Catherine KK Wong, Barrister at Law, and the Prosecution was represented by Ms Stella WS Lo, Public Prosecutor. At the conclusion of the review, I ordered that bail be refused and the Applicant was remanded in jail custody. The ground of my decision was that I considered that there were substantial grounds for believing that the Applicant would fail to surrender to custody as the Court may appoint. At the conclusion of the hearing are indicated to the parties that I would publish reasons for my decision in due course.

3. These are my reasons.

Charges

4. The charges levelled against the Applicant are:

(1) Conspiracy to wound with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212 and sections 159A and 159C of the Crimes Ordinance, Cap. 200.

(2) Possession of child pornography, contrary to section 3(3) of the Prevention of Child Pornography Ordinance, Cap. 579.

The 2nd charge is, I understand, to be dealt with summarily before a magistrate. That has been adjourned to 16 February 2021 to mention. The 1st charge, being an indictable offence, is to be dealt with by way of committal proceedings and, if committed, tried before a jury in the High Court.

Procedural history

5. The Applicant was arrested on 21 April 2020. He was brought before a Magistrate on 23 April 2020. On that date, bail was refused. Following that hearing, there were a series of hearings in relation to charge 1 culminating in the hearing before Mr David Cheung Chi Wai on 18 January 2021.

Basic principles

6. The basic principles which govern the decision to grant or to refuse bail are well known. Section 9D(1) of the Criminal Procedure Ordinance provides in part that “a court shall order an accused person to be admitted to bail…”. Section 9D(1) says that this principle is subject to section 9D and to section 9G of the Ordinance. However, the basic principle articulated in section 9D(1) is the starting point for analysis. That provision reflects the common law and also reflects Article 87 of the Basic Law. Article 87 provides:

“In criminal or civil proceedings {xe “Courts: rights of litigants”} in the Hong Kong Special Administrative Region, the principles previously applied in Hong Kong and the rights previously enjoyed by parties to proceedings shall be maintained.”

Further, Article 9(1) and (3) of the International Covenant on Civil and Political Rights (“ICCPR”) is also critical to this issue. Article 9(1) 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.”

7. The particular application to the right of liberty and security of person in relation to the issue of bail is governed by Article 9(3) of the ICCPR which is as follows:

“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 judgement.”

8. The provisions of the ICCPR are incorporated by reference into the Basic Law by Article 39 of the Basic Law. For completeness, Article 9 of the ICCPR is in the same terms as Article 5 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

9. Section 9D of the Criminal Procedure Ordinance reflects the fundamental principle that any person charged with a criminal offence is presumed to be innocent until proven guilty.

10. Section 9D(1) is expressly made subject to that section and section 9G. The relevant provisions of section 9D and other provisions provide that the release on bail of any person may be subject to conditions. Section 9G(2) then sets out a wide range of circumstances which might permit a Court to refuse bail. However the threshold for permitting a Court to refuse bail is provided within section 9G(1) which requires that before a Court refuses bail there are substantial grounds for believing that there are proper grounds for refusing bail. Section 9G(1) 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.”

The circumstances identified in section 9G(2) are as follows:

“(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.”

11. As will be seen, section 9G(2) articulates a wide set of circumstances and, in any event the width of these provisions is demonstrated by section 9G(2)(h): “any other thing that appears to the court to be relevant”. For the purpose of determining if, by reference to section 9G(1) there are substantial grounds for believing that one of the three events mentioned in section 9G(1) might occur, section 9G(2) entitles the Court to “have regard” to these factors and the existence of circumstances such as those mentioned in section 9G(2)(a) a serious offence or the manner in which a such person might be dealt with for that offence “in the event that that such an offence is proved”. That a court comes to such as conclusion does not, of itself, mandate the refusal of bail. What it does, along with the other parts of the itemised list in that provision is to provide a framework for analysis of the more fundamental issue: whether the refusal of bail is appropriate. That analysis is plainly to be considered along with the presumption of innocence. That gives rise to other factors such as how long a person if refused bail might be in custody pending the resolution of the charges that such person faces. The underlying rationale of that is that if, for example, a person was detained for a period of time and then acquitted, that acquitted person has been deprived of their liberty for that period. That there might be compensation in some circumstances is, within limits, a good thing, but, may in any event, be cold comfort.

12. In short, the determination of whether to refuse a person bail involves a complex balancing of competing issues and values. Almost of necessity, that resolution may be imperfect, but it is plainly the duty of a Court contemplating the refusal to grant bail to minimise the imperfection. That challenge is magnified by the reality that in many cases there are competing versions of the factual matrix that a Court must consider in order to make that determination.

13. The position was summarised in HKSAR v Vu Thang Duong [2015] 2 HKLRD 502 where Zervos J observed:[1]

“16. The relevant provisions allow the court to take into account a range of relevant matters when deciding whether or not to grant bail. The presumption of bail can be rebutted by the nature of the offence, the risk of danger to the public, or the likelihood that the trial could be affected by the defendant absconding or influencing a witness. An unreasonable delay in custody, in the particular circumstances of the case, may be a factor in favour of bail. Of course, such a factor would be taken into account together with all other relevant factors in deciding whether or not to grant bail.”

Facts of the case

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