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Wan Shui Ying And Another v Attorney General

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
Judgment Date29 March 1990
Subject MatterCivil Appeal
Judgement NumberCACV145/1989
CourtCourt of Appeal (Hong Kong)
CACV000145/1989 WAN SHUI YING AND ANOTHER v. ATTORNEY GENERAL

CACV000145/1989
1989, No. 145
(Civil)

HEADNOTE

Bail - forfeiture of cash bail - principles to be followed - non-forfeiture or partial forfeiture of cash bail should only be ordered in rare cases of great hardship. Not so in this case - appeal against forfeiture order dismissed.

IN THE COURT OF APPEAL 1989, No. 145
(Civil)

BETWEEN

WAN SHUI YING First Appellant
WAN SHUI WAN Second Appellant

AND
ATTORNEY GENERAL Respondent

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Coram: Fuad, V.P., Hunter & Penlington, JJ.A.

Date of hearing: 7 March 1990

Date of handing down judgment: 29 March 1990

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JUDGMENT

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Penlington, J.A.:

1. This is the judgment of the Court.

2. On the 30th March, 1988 WAN Yat Kwai (the accused) first appeared before the Magistrate's Court at Fanling, together with four other persons, charged with manufacturing heroin and possession of heroin for the purpose of unlawful trafficking. There were subsequent appearances before the Magistrate's Court in Fanling and eventually the matter was transferred to the Central Magistracy for the purpose of committal proceedings.

3. The accused applied for bail to the High Court on the 17th June, 1988 and, somewhat unusually in view of the nature of the charges, he was granted bail by Garcia, J. on terms that were not correctly reflected in the subsequent sealed order. That order states that

"the said Applicant be admitted to bail in the sum of HK$100,000.00 with 2 sureties of HK$250,000.00 each to be approved by Clerk of Court".

It seems clear from the record that in fact there was to be cash bail in each case, that is HK$100,000 cash from the accused and HK$250,000 cash from each of the sureties. We have no doubt that the fact that such a considerable amount of cash was to be provided was a major factor in the decision to grant bail even though the charge was one of manufacturing heroin. There was a further condition to bail and that was that the accused was to surrender his travel documents and to report to the Aberdeen Police Station twice daily between 9 a.m. to 1 p.m., and 3 p.m. to 6 p.m.

4. On the 21st June the accused duly produced his own HK$100,000 which was deposited by him and he entered into a recognizance to appear before the Magistrate's Court at Central when required and to comply with the other conditions of the bail. At the same time the two Applicants each also produced cash of HK$250,000 which was deposited as surety for the accused's compliance with his recognizance. On the 20th July the accused surrendered to his bail at the Central Magistracy and entered into a fresh recognizance to appear on the 3rd August 1988, the other conditions of his bail remaining the same. Again the Applicants also signed as sureties in respect of the cash sums which they had already produced.

5. On the 26th July, 1988 the accused failed to report to the Aberdeen Police Station and he did not appear in the Magistrate's Court on the 3rd August. He had absconded and was subsequently arrested in Thailand. It would seem that he had managed to leave Hong Kong with the aid of three police officers and they were all subsequently charged with the offence of conspiracy to pervert the course of justice. The accused was later convicted of that offence and also of the two offences with which he had been originally charged. That trial took place in December, 1988. The accused received a total sentence of 18 years' imprisonment.

6. Nothing apparently was done regarding the cash bail and sureties which had been put up by the accused and the Applicants until the 2nd May, 1989 when the Applicants' solicitors wrote to the trial judge asking for a return of the money. In reply to that a letter was sent by the Registrar fixing a date for the hearing of the application before Deputy Judge Corcoran. On that day a hearing was conducted in a very proper manner involving the Applicants themselves giving evidence and calling witnesses on their behalf. Evidence was given both as to steps which had been taken by the Applicants to ensure the compliance by the accused with the conditions of his bail, as to the manner in which they had obtained the HK$250,000 in each case and as to their present financial position. In a very careful reserved decision the trial judge refused the applications for the return of any of the cash surety which had been provided and ordered that it be forfeited.

7. Mr. McCoy, who appears for both Applicants, has very helpfully drawn our attention to various matters as regards the procedure, or perhaps we should say lack of procedure, relating to the forfeiture of cash sureties which have been provided as they were here. While he takes no point as to the failure to follow the procedure that has been laid down it would seem that this is a matter which does require legislative attention.

8. The question of the provision of cash bail is contained in Section 13AA of the Criminal Procedure Ordinance. That section was enacted following the decision in the United Kingdom in R v Harrow Justices, ex parte Morris [1972] 3 All E.R. 494 which held that there was no Common Law provision allowing for cash bail. The Section reads as follows:

"13AA.

(1) A court may on admitting or directing the admission of an accused person to bail order that such sum of money as the court may specify be deposited with the court as a condition of the admission to bail by the accused person or a surety or by both the accused person and a surety.

(2) 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.

(3) An order of a court under subsection (1) may be in addition to any recognizance with all that sureties required by or under this or any other ordinance.

(4) In this section "court" includes the District Court and a Magistrate."

There is no provision in this section as regards the procedure to be adopted for forfeiture of the amount so put up if the conditions are not met, particularly where the surety is not present in court when the accused person fails to appear. Section 45 of the Criminal Procedure Ordinance provides that if the accused person does not appear on the day appointed for trial a motion may be made on behalf of the prosecution that he and his sureties be called on their recognizances and in default of appearance that the same be estreated. It also provides that on any such application the court may make such order "as it may think just". It is clear here that the procedure under Section 45 was not followed. Mr. McCoy however relies on the section as showing that it was the clear intention of the legislature that forfeiture of cash sureties should not be made unless the court is of the view that it is just to do so. He also relies on Section 114 of the Criminal Procedure Ordinance, which was enacted at the same time as Section 13AA, as authority that the court also has power to reduce the amount which is to be forfeited to such sum as it thinks fit. Section 114(1)(d) provides that a court may make an order "in the case of a recognizance, discharging the recognizance or reducing the amount due thereunder."

9. The trial judge in his reasons for his decision to order forfeiture of the cash sureties has come to certain findings of fact which, with one exception, that relating to the first Applicant's money alleged to have been kept in a safe-deposit box, Mr. McCoy does not challenge. We are quite satisfied that all the findings of fact are supported by the evidence and were perfectly proper. What is however more difficult is to apply those findings to the statutory provisions which are far from complete and in the light of the relevant authorities which are by no means unanimous.

10. Each of the Applicants is a sister of the accused. It is clear that each has attained only modest educational standard and that in providing the very large sums of cash which they did to enable the release of their brother on bail they were acting with the sense of...

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