HKSAR v. TAI YIU TING

CACC 128 /2019

[2019] HKCA 1144

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 128 OF 2019

(ON APPEAL FROM DCCC NO 480 OF 2017)

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D E C I S I O N

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1.  On 15 August 2019, I granted bail pending appeal to the applicant on condition that he:

(1)  provide cash bail in the sum of $100,000;

(2)  surrender all of his travel documents, except his Identity Card, and be prohibited from leaving Hong Kong without the prior permission of the Court; and

(3)  reside at the address reported to both the Court and the respondent.

2.  The applicant now seeks a variation of the second term (and necessarily the third term during the currency of the variation of the second term), so as to leave Hong Kong in order to visit Seoul National University in South Korea and Tokyo University in Japan for what were described in his 2^nd affidavit as “academic purposes”.  Those purposes, as can be gleaned from the invitation letters to the applicant from the respective universities are to give speeches and attend seminars at conferences being conducted by each institution.  The necessity for the applicant to attend such conferences as part of the contractual duties of his employment, and the importance of these particular conferences to the research currently being conducted by the applicant, have been explained in a 3^rd affidavit received by the Court yesterday and elaborated upon by Mr Chan SC, with him Mr Cheung on behalf of the applicant, in submissions before me this morning.

The applicant’s submissions

3.  Mr Chan made three succinct points in support of the application. First, there can be no risk of absconding when the applicant’s family, work and life are all bound up with Hong Kong.  He made the point that the applicant’s actions, however they may be regarded by the courts, were the product of high moral principle, the sort of principle which is rather inconsistent with, and unlikely to be undermined by, any desire to abscond from the jurisdiction.  Secondly, the applicant is an academic of some 25 years’ standing and a tenured associate professor of law at Hong Kong University, whose professional duties require him to continue with the development of his studies and research.  Bail pending appeal should so far as possible allow him to “get on with his life”.  Thirdly, the conferences which he has been invited to attend involve the discussion of genuine issues of scholastic concern within his particular remit as an academic: they are not concerned with political issues or events.  Mr Chan urged the Court to vary the terms of bail so as to allow the applicant to continue so far as possible with what he has been successfully doing for the past 25 years.

The respondent’s submissions

4.  The application is opposed by Mr Lui, with him Mr Lau, on behalf of the respondent.  Mr Lui accepted that the applicant had a genuine interest in the subject-matter of the conferences concerned and that the invitations from the two institutions were genuine.  He also confirmed that the respondent had accepted, in conceding that the applicant should be admitted to bail pending appeal, that there was no real risk of him absconding.  However, he made the obvious, and perhaps sensible, observation that bail pending appeal is permitted for applicants to remain in the jurisdiction: once they leave the jurisdiction, the dynamics of an applicant’s predicament change.  Mr Lui further took issue with the necessity of the applicant attending these two particular conferences and submitted that any impact on his future career would be limited.  Ultimately, the applicant’s reasons for seeking to vary his bail conditions must yield to wider, more important considerations of public policy concerning the due administration of justice and the way the public see the administration of justice.

Consideration

5.  The principles involved, wherever a convicted applicant or appellant applies for permission to leave the jurisdiction pending the hearing of his appeal, have been recently set out by the Court of Appeal with such comprehensive clarity and common sense that I will be forgiven for quoting from the judgment extensively. 

6.  The Court in Secretary for Justice v Wong Chi Fung[1] was dealing with an applicant who was likewise seeking to travel overseas, in his case to Europe and Asia, in order to attend various conferences and workshops, as well as to receive awards at two ceremonies in Europe and the United States; the applicant having been convicted of criminal contempt and sentenced to 3 months’ imprisonment, for which he was admitted to bail pending appeal.  The Court, in setting out the general principles attending such applications, held:

“6.  We first state the general principles which guide us in determining the respondent’s application. Although these principles are derived from the law on bail in general criminal proceedings, they are, for obvious reasons, equally apposite to the question of bail in criminal contempt. In the following statements of principle, the references to “a person convicted and sentenced” or “an appellant” mean a person who has been found to be in criminal contempt of court and has been so sentenced.

7.  A person who has been convicted and sentenced to a term of imprisonment does not have a right to be admitted to bail pending appeal against conviction or sentence. Whether or not an appellant should be admitted to bail pending appeal and, if so, on what conditions are at the discretion of the court. Where bail is granted, even when there is no risk of absconding, the court will ordinarily impose conditions requiring the appellant to stay in Hong Kong and as a corollary, not to leave the jurisdiction; to reside at a reported address, which is usually his normal place of residence; to inform the police of any change in that address; and to report to a specified police station on a regular basis. Being subject to those conditions, the appellant does not enjoy the same extent of liberty and movement as others. He must accept such restrictions on his liberty and movement when bail is granted to him.

8.  The reporting condition and the two conditions on residence provide the court with an alternative way of keeping a check on the appellant, short of detaining him. Any non‑compliance of those conditions is a serious concern. The police will take immediate action to locate the appellant or to ascertain his whereabouts. If necessary, it will also be brought to the attention of the court to see if it needs to revisit the question of bail or vary the bail conditions.

9.  To some extent, prohibiting the appellant from leaving Hong Kong helps to ensure that he would appear at the appeal hearing or that he would surrender to custody when so ordered. Such a utility aside, two more fundamental policy considerations are at play.

(1) While his appeal is pending, the appellant remains a person who has been duly convicted and sentenced. That is his status. His conviction and sentence are valid and subsisting unless overturned by the appellate court. That is his legal position. Both his status and legal position do not change upon the appellant being granted bail. In the circumstances, it is in the interest of due administration of justice to require the appellant to stay within the jurisdiction for so long as his appeal is pending. Allowing the appellant unrestricted freedom to leave the jurisdiction as he sees fit and to return if he so desires, when he is no longer an innocent person in the eyes of the law, will clearly undermine the public confidence in the due administration of justice. To the extent that the appellant is not allowed to travel abroad pending appeal, it is a restriction on his liberty and movement. But it is a necessary restriction so as to ensure that, in accordance with the interest of due administration of justice, he is not away from the jurisdiction while his appeal is undergoing the judicial process.

(2) When it is said that there is no absconding risk, it is necessarily an assessment based on the circumstances that were made known to the court at the time of the bail. However, circumstances may change after bail is granted and if the change is material, the risk of absconding may require a different assessment. Leaving the jurisdiction is self-evidently a material change of circumstances. The appellant will then be beyond the immediate reach of the Hong Kong judicial system. The notion of not returning to Hong Kong to face the possible prospect of an unsuccessful appeal may become tempting. By prohibiting the appellant from leaving Hong Kong, such a possible increase in flight risk is prevented.

10.  With these policy considerations in mind, the court would only allow the appellant overseas travel by varying the very condition which prohibits his so doing in highly exceptional circumstances.  The burden rests squarely with the appellant to persuade the court that the variation sought is well justified.  The court will closely examine the justification advanced by the appellant to see if the burden is discharged satisfactorily.”

7.  In that application, it was accepted that the risk of absconding once the applicant was out of the jurisdiction was low.  Nevertheless, the Court held:

“19.  However, even accepting that there is a lack of risk of absconding and that it will remain to be so if the respondent is allowed to travel, that alone is not sufficient to displace the policy consideration that is based on the interest of due administration of justice, and which prohibits the respondent from leaving Hong Kong while his appeal is pending. The respondent must satisfy us that there are good reasons for him to attend those overseas events: reasons that are so demonstrably strong or special that the policy consideration should take second place.”

8.  It follows that the onus is upon an applicant who has been convicted and is pending his appeal to show that there are highly exceptional circumstances justifying his travelling overseas.

9.  The difficulties which beset professional men and women who have been convicted of criminal offences and sentenced to imprisonment are surely not in any way unusual in our courts.  And much as the courts would generally want to reduce extrajudicial difficulties in the path of a defendant facing trial as far as may be possible and prudent, his or her position necessarily becomes very different once he or she is convicted and sentenced to imprisonment.  At that stage more fundamental public policy considerations come into play.  As explained by the Court in Wong Chi Fung, to allow convicted appellants to leave the jurisdiction for reasons of professional convenience, or indeed necessity, not only places the due administration of justice at risk but undermines public confidence in the due and proper, and I might add, fair administration of justice.

10.  Although it is not suggested that there is a perceptible risk that the applicant might not return to Hong Kong if permitted to leave, no one can say what the influences might be on anyone, even of the utmost probity and character, when free from the jurisdiction whose courts have convicted him and sentenced him to a term of imprisonment.  That risk must inevitably be greater, which is why such applications must give way to more important considerations of public policy, unless the circumstances are highly exceptional.  I regret to say, notwithstanding the persuasive submissions of Mr Chan, I do not accept that the circumstances advanced in this application are in any way exceptional, let alone highly exceptional.  I am unable to find that the reasons advanced for the variation are so demonstrably strong or special that the policy considerations to which I have referred should take second place.

11.  In the circumstances, I am not prepared to vary the terms of the applicant’s bail so as to allow him to travel overseas to attend the proposed engagements. The application is accordingly refused.

Mr Ira Lui ADPP and Mr Derek Lau SPP, of the Department of Justice, for the Respondent

Mr Johannes Chan SC and Mr Eric TM Cheung, solicitor advocate, instructed by Ho, Tse, Wai & Partners, for the Applicant