27 July 2023
Recently the full bench of the Court of Appeal in its criminal jurisdiction had the opportunity to consider four unprecedented renewed applications for bail pending the hearing of their appeals against conviction and sentence[1]. Those applications were made pursuant to section 83Y sub-section (3) read in conjunction with sub-section 2(e) of the Criminal Procedure Ordinance, Cap. 221, Laws of Hong Kong:
83Y. Powers of the Court of Appeal under Part IV which are exercisable by single judge
(2) The said powers are the following –
(d) to admit an appellant to bail
(3) If the single judge refuses an application on the part of an appellant or applicant to exercise in his favour any of the powers above specified, the appellant or applicant shall be entitled to have the application determined by the Court of Appeal
Interestingly, as the Court had observed during submissions at the hearing, no such application had ever been made in Hong Kong in the 50-year history of that legislation. The novelty of the nature of the application can be demonstrated by the warning issued by the Vice-President of the Court to Senior Counsel on 15 June 2023 prior to the hearing as described in the judgment based on the assumption that no such right existed[2].
The novelty lied not on applying for bail pending appeal, since bail applications are commonly listed to be heard by a single Justice of Appeal of the Court of Appeal, and the result of the application has always been treated as final. The four applicants’ applications before the single judge had been heard and were refused. In the hearing it was common ground between all the parties and the Court that this was the first time the applications for bail were renewed before the full bench of the Court of Appeal after refusal by a single judge.
There could be many reasons as to why no similar applications had been pursued previously in Hong Kong. These sections did not appear to be known or well-known amongst the criminal practitioners. We were all taught about the finality of the adjudication by the single judge and to accept it as such.
Returning to the case itself. It was a complex money laundering case in which the four applicants were some of the defendants. The total amount charged was over HK$2 billion. The facts of the case and the actual grounds of appeal against conviction and sentence are not relevant for the purpose of the present topic here.
The applications obviously raised a serious red flag with the Court. If every imprisoned appellant or applicant[3] whose appeal to the Court of Appeal is pending has the right to make an interim bail application in which the Court is duty bound to consider the merits of their grounds of appeal, the workload of the Court will have been doubled, and possibly wasted should the judges hearing the appeal proper later not be the same panel who have presided over the bail application. The dire consequences of allowing such a floodgate to be opened was highlighted by the Vice-President at the hearing alluring to the fact that around 80% of the appellants or applicants to the Court are acting in-person. Simply put, there was every policy reason based on case management needs to discourage or disallow such applications. It must be stressed that no criticism can be attached to the Court alluring to management considerations in its interpretation of these statutory provisions. The Court had said so itself that when considering how section 83Y should be enforced management factors play and should play a part of it[4].
The dilemma for the Court of Appeal, however, was the clear statutory language which embraced the fundamental right an appellant or applicant enjoys of having the full bench of the Court to determine his bail application. That such a right existed was not disputed by the parties, including the Court itself[5], thus overturning the initial skepticism the Vice-President had when he issued the warning to Senior Counsel mentioned above prior to the hearing. The language of these provisions was a huge obstacle to desirable case management goals.
Despite the Court observed that this right was not without pre-conditions, these so-called pre-conditions were then identified to be merely logistical ones[6]. These so-called pre-conditions can hardly be viewed as causing any substantial erosion to the quality of the right in question.
In order to solve the dilemma the Court employed several statutory construction tools:
This article examines whether these reasoning of the Court are conducive to an effective upholding of an appellant or applicant’s right to have the full bench of the Court of Appeal determine his or her renewed bail application, bearing in mind the Court has acknowledged three times the existence of such a right, albeit with pre-conoditions.
Despite on the face of the statutory provision no time was set as to when a renewed application for bail could be made to the full bench of the Court of Appeal, the same can be said of the initial bail application before a single judge. Yet without exception all bail applications before a single judge have been pre-appeal proper. One may argue that there is a distinction between a bail application being heard before a single judge and a renewed one by the full bench, since the former was meant to be a screening process[12] and hence must be pre-appeal proper. On the other hand, nor does the statutory language prohibit a pre-appeal renewed bail application either.
It may be inapt to treat a renewed bail application on the same footing as the other three kinds of possible renewed applications which are usually heard at the same time as the appeal proper, as there exists a fundamental distinction between them. It is only in a bail scenario that an appellant or applicant can lose his right to make the application if it is not heard promptly or expeditiously. Applicants such as D7 and D8 cannot afford to wait till the appeal proper for their renewed bail application to be heard as they will have been released by then. The extinction of the right to a renewed application will not occur with the other three situations identified by the Court.
The above distinction also highlights that the method used by the Court of putting back a renewed bail application to the time of the hearing of the appeal proper cannot be the solution to the problem. Besides the situation of D7 and D8 already submitted above, the Court’s use of the complexity in the instant case in support of there being a maximum of a 6-month wait for the preparation of the reserved judgment during which bail can be granted may not be suitable in other much simpler and straightforward appeals. The instant appeal is the exception rather than the norm. In the majority of appeals, it is not unusual for the Court to give judgment immediately or to reserve it for only a short while. In the former case since an adjudication will have been arrived at by the Court immediately, whether the appeal is allowed or dismissed, the right to apply to the full bench of the Court for bail at the appeal proper will be rendered immediately nugatory. In the latter case, a decision to grant bail for the very short period of time while the judgment is reserved will be tantamount to pronouncing in advance an indication of the outcome of that judgment, or to raising a false hope of a successful appeal should the appeal be ultimately dismissed. For a complex appeal such as the instant one, the Court will come face-to-face with the question of what to do with a renewed bail application at the end of the hearing when it has yet to come to a decision on the merits of the grounds of appeal and will require time to study the materials in detail. The act of granting or refusing bail at that stage will raise problems identified above.
In law an appellant or applicant would already have enjoyed the benefit of section 83R under which bail can be granted at the hearing of the appeal proper without the pre-condition of having to have applied it first before a single judge. The Court’s interpretation of section 83Y pushing back the time for the exercise of the right of making the renewed bail to the time of the hearing of the appeal proper, with respect, adds nothing to what is already covered by section 83R. The Court’s conclusion in effect makes section 83Y completely otiose. Whilst legally recognizing the existence of the right, the Court’s interpretation of how it should be exercised will erode all appellants or applicants of precisely that right.
The Court’s proposed solution for D7 and D8 that they can repeat their bail application before the original single judge, provided there is a material change of circumstances, exactly demonstrates how these applicants’ right to be before the full bench of the Court of Appeal have been removed from them by this judgment. Ultimately, by the time of their release from prison, D7 and D8 will not have any chance of having the full bench hear let alone determine their bail applications despite having invoked it, and the failure of which is not due to their non-compliance with the pre-conditions.
I cannot end this article without touching on another issue. The Court’s judgment is one against which unfortunately the four applicants cannot further appeal. There can be no appeal to the Court of Final Appeal unless there has been a “final decision” by the Court of Appeal on the question of bail[13]. Yet there will not be such a “final decision” until the end of the hearing proper based on the Court’s present holding. By then any further appeal will be futile and serve no useful purpose. The Court’s judgment will last at least another 50 years before it may be reviewed on another occasion.
--------------------------------------------------------------------
[1] CACC 107/2021, [2023] HKCA 864, judgment dated 11 July 2023
[2] §19 therein
[3] In this article no distinction is being drawn between an appellant and an applicant, although the four bail applicants were only appeal applicants and not yet appellants as their leave applications are yet to be heard
[4] §34 and §42 where Fok PJ’s observations on section 83Y in HKSAR v. Md Emran Hossain was cited
[5] §21 shows the Respondent took no issue on this. At §§34, 36 and 40 the Court emphasized this was an entitlement of the appellant or applicant
[6] §34 therein
[7] §36 therein
[8] §§40 and 41 therein
[9] §43 therein
[10] §45 therein
[11] §46 therein
[12] per Fok PJ in Md Emran Hossain quoted at §42 therein
[13] Section 31(a) of the Court of Final Appeal Ordinance, Cap. 484 LHK
This article was authored by Joseph Tse, SC.
