An Hypothetical Submission made on behalf of Mr Chung Yik-tin(鍾亦天)

標籤: 左冷禪, 法律隨筆

The following is a hypothetical submission made on behalf of Mr Chung Yik-tin whose application for bail before Magistrate Kwok was refused and who has been remanded in custody since then. To deal with a situation as such, Chung may either make an application for the hearing magistrate to review his decision within 14 days from the date of the said decision under s.104 of the Magistrates Ordinance Cap.227 or appeal against the magistrate’s decision before a High Court judge under s.113 of the same ordinance. Usually the magistrate himself would not review his decision unless there is any change of circumstance in favour of defendant. But mere increase of bail money is hardly viewed as a change of circumstance for justifying a review by the court.

My Lord, this is an appeal against the Learned Magistrate Kwok’s decision to refuse bail dated 1st February 2008. My humble submission is based on the following grounds.

First of all, it is our submission that the Learned Magistrate’s reliance on s.9G(1)(b) of the Criminal Procedure Ordinance, i.e. the possibility of Mr Chung to commit an offence while on bail, as his main ground to refuse bail is unfounded. It has surely come to your Lordship’s knowledge that during the Appellant’s custody in the Lai Chi Kok Reception Centre, there are still release after release of those obscene pictures on the internet almost everyday. As a matter of fact, the prosecution failed to adduce any evidence suggesting the Appellant may commit crime during bail in the previous hearing for bail. When there is no evidence from the prosecution suggesting that the Appellant had any accomplice in the alleged offence nor is it the prosecution case to be so, the Learned Magistrate’s remand order aiming to prevent further releases of obscene pictures by the Appellant during bail, which is with respect too draconian and oppressive in the modern perspective, proves to be of no avail. I therefore humbly invite your Lordship to consider whether such draconian yet ineffective measure be still allowed to remain in force and tolerated by our judiciary system in the 21st century.

Besides, it is also submitted, with respect, the learned magistrate had allowed his judgment to be overrun by the prosecution’s suggestion of the Appellant being involved in blackmailing by the use of some obscene pictures. By drawing the court’s attention to the Appellant’s recent settlement of a debt of HK$500,000, the prosecution had attempted to entice the learned magistrate to think this has something to do with the present s.21 charge. However, in the absence of any evidence to support this i.e. any report of blackmail and witnesses, I submit such inference drawn by my learned friend of the prosecution is very misleading and unsafe. In fact it should not be mentioned at all in an open court as it would inevitably affect the soundness of the learned magistrate’s decision. I emphasize in no way should the Appellant’s right to bail be inhibited by some mere speculation of the prosecution.

My Lord, I am not going to trouble you with the extent of statutory and common law protection for one’s liberty because your Lordship surely knows a lot more on this subject than myself. But I just wish to draw your Lordship’s attention to Part II art.5(3) of our Bill of Rights Ordinance which says “it shall not be the general rule that persons awaiting trial shall be detained in custody” and the Magna Carta that provides one’s liberty shall not be deprived of unless and until he is convicted. To practice otherwise, is obviously a departure from our well-established legal principles, as well as a stigma to our judiciary system.

Of course I do not dispute the judicial discretion of a magistrate to refuse bail but it is our submission, that the gravity of the alleged offence against the Appellant does not justify a pre-trial custody as such. We are not here dealing with a charge of murder, armed robbery, drugs trafficking, triad-related offence which endangers the innocent lives. Neither are we dealing with offences like treason or riot that would upset social stability. We are only dealing with a charge of s.21 of the Control of Obscene and Indecent Articles Ordinance which is used very often against public release of indecent articles by media corporations. My Lord, I am not suggesting nature of the alleged offence here is as petty as stealing a bar of chocolate in the supermarket, but neither is it so serious an offence that warrants immediate custody of the Appellant without a fair trial and a right to defend. Should the alleged offence be that serious, it would have been reflected in the suggested sentence, a longer term of imprisonment for instance. Please note it is particularly the case, when there is nothing to indicate the Appellant is making any monetary gain through the alleged offence.

Thirdly, it is further submitted that the learned magistrate was erred to remand the Appellant in custody for a lengthy period without taking any plea or setting down a return date. If there is now a prima facie case of s.21 offence, the Appellant should be allowed to enter his plea and a return date be appointed. And the prosecution should have elected forum of hearing as well. I cannot see any reason why a formal trial on the present alleged charge not be disposed, except of course when the prosecution is not ready. But if the prosecution case is not ready, charge should not have been brought at the first place. I would not rule out the possibility that the police / prosecution is delaying, attempting to do some fishing exercise. Is it not our prosecution policy that charge could only be brought when the admissible and available evidence of the prosecution could establish prima facie case against a suspect? Is it not the prosecution’s obligation to ensure a trial is conducted fairly and the accused is not prejudiced? As a matter of fact, it is the incumbent duty of this court of justice to ensure the principles and values of justice not be traded for administrative convenience.

My Lord, the Appellant’s parents and other family members are living in Hong Kong and with such a close family tie, it is quite unlikely that he would abscond during bail. It is my instruction to inform the court that the Appellant is willing to surrender his passport and other traveling documents and would report to the Wanchai police station everyday at 6 pm. With the assistance of some friends of his, he is able to raise a sum of HK$10,000 (20,000) as surety money. And he further undertakes to surrender himself to court upon summon. In view of the above grounds and undertakings, the Appellant should be granted bail. Unless I could assist this court any further, this is the end of my submission.