Week 2 Bail PPT Bail Important step in criminal process in HK The first time obviously you can see

e the bail is right to the beginning when they charge the defendant at the police station. He might be bailed there. If they do not give him bail, next time is the first appearance, bail at the MC. If you failed there, you can make another one at MC or you can go to CFI for bail. What is the change in circumstances to allow you to make a new bail application? Either related to his personal situation: health, job, income, residence, or related to the case itself. On the second one, let say that the prosecution decides to drop the charge from burglary to theft, and this is a change in circumstances. We can apply for bail now. Or the prosecution last time was concerned about his no fixed aboard, and now he got a permanent residence somewhere. This is a change in circumstances, and you can make a bail application. Historically ancient right +habeas corpus to prevent unlawful detention Somebody pledges properties or money. If he does come up to his hearing/trial, then he will get the goods or money back. If he does not, he forfeits it. The most common bail term is cash bail. It is well protecting someone for not staying in custody before trial. It is not fair to unlawfully keep someone when it has not been proved against them. You do not want to keep people unnecessarily unless it is a very serious offence and we cannot take the risk of him being released, or he got a history of committing an offence on bail, or he is going run away. We know that for sure. HKBORO Art 5(3) Liberty and Security of Persons (R v Lau Kwok-hung No 1 (1991)) HKBORO Art 5 (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 judgment. ()

 You should not keep a person in custody pending his trial normally unless there are good grounds for it. Bail arises at several stages in criminal process We call it the right to bail initially provided that you have not been convicted. It is not a privilege, but a right. The only way the prosecution can oppose it is by showing that you will not come, or will commit an offence on bail because that is what your record says, or pervert or obstruct the course of public justice. They have to tell the court why they want to oppose it. If you are convicted at trial for sentencing for 2 weeks pending reports, you cannot say I got the right to bail. Usually application is in open court before MC, DC, or CFI judges, but in CFI in chambers normally on paper. In this situation, D not always present. But sometimes in CFI, if it is asking for review of the MC decision to refuse bail, it might be done on paper and probably in chambers. If the bail is granted by the judge subject to conditions, then all the conditions have to be met. Magistrates Court When dealing with an accused who appears before a court as a result of an arrest and failure to secure police bail (court bail) S.52(1) PFO in such circumstances the accused should be brought before a magistrate as soon as is practicable. The Police Force General Orders recommend that a person should be charged and brought before a Magistrate no later than the next Magistrates sitting. See Police General Orders: http://www.police.gov.hk/ppp_en/11_useful_info/doc/Epgo049.pdf S52 PFO (Police Force Ordinance) does not contain a specific time for production (generally) though in practice this is usually within 24 hours of being charged. The 48 hour rule is actually not a rule at all but a practice that evolved. (applied originally only to HM Forces Defendants under (4)) The Right to Bail Art.5(3) HKBORO provides a presumed right to bail It is also a part of fairness in the Basic Law and BORO. Basic law: right to be treated fairly and fair hearing, which includes the right not to be kept unduly long in custody

waiting for your trial. What does that mean? A person should be released unless substantial grounds can be established for depriving a person of their liberty What are those grounds and where are they found? It is for the prosecution not for the defendant to establish that this person should not be given bail for however long it takes. Part 1A, ss.9C 9Q CPO all the information about bail S.9D(1) CPO expresses that a court should admit a person to bail S.9G(1) CPO outlines the main grounds for refusing bail.

1) ( 9D(2) ) (a) (b) (c) Cap 221 s 9G An accused person may be refused bail in particular circumstances (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 What kind of person would they be concerned about? If a person committed a serious crime, he is likely to go to prison and then he will not be in the court especially there is a case very strongly against him and he knows that. (b) commit an offence while on bail; or What kind of person would they be concerned about? Not a first time offender. Unless the person has actually got a record of committing offence while granting bail, it is not normally a ground which they will raise. So all depends on his record. (c) interfere with a witness or pervert or obstruct the course of justice.

What kind of person would they be concerned about? If the defendant is part of the gang and police only managed to arrest him, he know what the other people are. If he is granted bail, the first thing he will do is to tell them to disappear. This is obstructing the course of justice. Obstructing the course of justice: if he goes out on bail, he will make polices job much more difficult. He might get rid of the stolen goods or try to hide something, or he might tell somebody to disappear. Or interfere with a witness. If we give him bail, he will go and threaten witnesses. When they go to court, violence will happen to those potential witnesses. This might happen in organization crime. The prosecution must specifically tell the MJ what the defendant is likely to do. S.9G(2) CPO outlines some of the factors the court may consider when deciding to refuse bail on the three grounds What are they? (2) (a) (b) (c) (1)

(d) (e) (f) () (g) (h) (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; Easier to grant bail: live with family, regular income, regular job, ties in the community, good background, more stability in their life, married and have child (d) the health, physical and mental condition and age of the accused person;

88 years old Very young people? Sometimes this will be against him. (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; We cannot refuse bail on previous convictions along. (g) the nature and weight of the evidence of the commission of the alleged offence by the accused person; How serious is the offence? if the charge is murder, the only person could give him bail is CFI judge. (h) any other thing that appears to the court to be relevant. S.9D(1) provides for the attaching of conditions and s.9D(3) provides examples of conditions that may be imposed What are they? Cap 221 s 9D Right of accused person to be admitted to bail (1) Subject to this section and section 9G, a court shall order an accused person to be admitted to bail, whether he has been committed for trial or not, when(a) he appears or is brought before a court in the course of or in connection with proceedings for the offence of which he is accused; or (b) he applies to the court before which he is accused to be admitted to bail; or (c) he applies to a judge under section 9J to be admitted to bail. (3) Without affecting the generality of subsection (2), the court(a) may not make it a condition of admission to bail that a recognizance of bail be taken from the person so admitted but may make it a condition, for the purpose only of securing the surrender of that person to custody as the court may appoint, that a recognizance of bail be taken from a surety; (b) may make it a condition of admission to bail that the person so admitted(i) shall surrender to the court any passport or travel document; somebody charged with serious offence and who can fly a lot (ii) shall not leave Hong Kong; (iii) shall report to a police station or the offices of the Independent Commission Against

Corruption as the court may specify; (iv) shall reside at a specified address and be present therein between such times as the court may specify; young people regularly commit offence at night: burglary (v) shall not enter any place or premises as the court may specify; (vi) shall not go within such distance of any place or premises as the court may specify; a person regularly commit theft at a particular shopping department, cannot go to certain street 2 reasons: to stop them going in to that place, and to stop them interfere witnesses as well. (vii) shall not contact directly or indirectly such person as the court may specify; (viii) or any person on his behalf or he and any such person shall, for the purpose only of securing the surrender to custody of the person admitted to bail as the court may appoint, deposit with the court such reasonable sum of money as the court may require. Surety: a surety does not actually hand in the money, but promises to pay the court the money if the defendant does not attend the court next time. The more serious the case, the more likely there will be several conditions. Other reasons for refusing bail not related to the three main grounds s9G (3)-(10) What are they? (3) An accused person need not be admitted to bail if it appears to the court that he should be detained in custody for(a) if he has attained the age of 18 years, his own protection; or for example, he is part of the gang, and if we release him on bail and he told police about everyone else who was involved in this case. We will keep him in custody for his safety.

(b) if he has not attained the age of 18 years, his own protection, safety or welfare; or (c) the purpose of further inquiry relating to the determining of the question of whether he should be admitted to bail. (3) (a) 18 (b) 18 (c)

(4) An accused person need not be admitted to bail if(a) he is detained in custody(i) under a sentence of any court; or (ii) for or in connection with a charge of failing to surrender to custody under section 9L; or (b) the court is satisfied that(i) he has previously failed to comply with any condition of bail imposed under section 9D; or (ii) any other court dealing with him in the same proceedings is or has been so satisfied. (4) (a) (i) (ii) 9L (b) (i) 9D (ii)

(5) An accused person need not be admitted to bail if he is the subject of a hospital order for the time being in force. (5) (6) An accused person need not be admitted to bail if he is the subject of an order made under section 109B (suspended sentence) for the time being in force and he is before the court under section 109D or 109E. (6) 109B () 109D 109E (7) An accused person need not be admitted to bail if he is the subject of a deportation order for the time being in force made under section 20 of the Immigration Ordinance (Cap 115). (7) 115 ) 20 ( ( 1997 80 103 ) (8) An accused person need not be admitted to bail if he is before the court under section 5 or 6 of the Probation of Offenders Ordinance (Cap 298) (breach of probation order; or commission of further offence). (8) ( 298 ) 5 6 ( ) (9) An accused person need not be admitted to bail if he is before the court under section 8 or 9 of the Community Service Orders Ordinance (Cap 378) (breach of community service order; or commission of further offence). (9) ( 378 ) 8 9 ( ) (10) An accused person charged with(a) murder; or (b) treason under section 2 of the Crimes Ordinance (Cap 200), shall be admitted to bail only upon the order of a judge. (10) (a) (b) 200 ) 2 ( ( 1998 25 2 )

When does the Court consider bail? First appearance, second appearance, under the trial, when the case is transferred to the DC, being convicted waiting sentences, appeal

Other Provisions under CPO S.9J an accused may seek review of refusal of bail or conditions of bail by a Magistrate or District Court Judge. S of J can apply to review a Mag/DC Judge decision to grant bail to CFI Judge usually within 24 hrs of decision See S9H Will be on paper/written affirmation The importance is that everything you want to say to a CFI about the bail should be on that document. Normally a bail application does not have the strict rule of evidence apply to it, so you can use hearsay evidence: who told who he gets a new job. If the defendant is granted bail by MJ or DJ, and it is a very serious offence and not many conditions attached, the prosecutor could stand up and ask: I am making an application for review to CFI. See 9H. This person must remain in custody until the decision of CFI Judge. S.9G(11) CPO concerned with repeat applications for bail (2 only unless change in circs). A new job, a new permanent residence S9K CPO. PC can arrest w/o warrant on reasonable suspicion if D is in breach of bail or is likely to breach bail. Also if surety has written to police stating he believes D is likely to fail to surrender to bail (will not surrender the money). A warrant will be issued by the court for his arrest provided that there is no explanation (sick in hospital). Example: the date before the defendant attends the court, and he is found checking in flight to US. This person could be arrested, taken to the police station, and brought before the court to explain what he was doing. S9L CPO Failure to surrender to bail is separate criminal offence (summary $75,000 fine and 6 mths/indictment unlimited fine 12 mths) Moving From Theory to Practice Bail applications are an essential feature of the criminal procedure process and all criminal practitioners must be familiar with Part 1A CPO. Knowledge of the law is not enough for a successful bail application. The practitioner must draw on other skills from interviewing, to swift preparation and advocacy. You must often assimilate information very quickly when preparing to make a bail appn, particularly in Mags Court.

You can talk to the prosecutor about their opinion and you can just prepare their concerns. Prepare everything ready and prevent delay: example: passport We recognize he has a record, but=give your reason You suggest one or two conditions, not too many, and not let the judge suggest.

Make sure you know: Section 9 of CPO Practical issue: book When you might be able to make new application What the change in circumstances is

Tutorial Questions Does the prosecution have a strong case for having Alice and Chans bail applications refused? If so, what is it? Provide separate answers for Alice and Chan. Is the fact that Chans criminal associates include members of a gang responsible for a series of armed robberies (who are still at large) relevant? If you were representing Alice and/or Chan what would you argue to obtain bail? a. Alice pleads not guilty to a charge of theft and applies for bail. Alice has 15 previous convictions for the same type of offence within the preceding three years. Alices previous offences were committed to obtain money to support her gambling addiction (which is ongoing). However, Alice is employed in a good job as a paralegal and lives with her parents who provide her with a loving home and emotional support and have being paying for her to seek addiction treatment. Alice has been attending her addiction counselling sessions every week for the last six months and her therapist has reported that Alice is making some progress. Alices bail application Alice has a right to bail section 9D(1) CPO you could remind the court about the right to bail if you like because it will know it anyway UNLESS Section 9G(1) of CPO applies. i.e. substantial grounds for believing she willThe only grounds we know now are the prosecution to establish whether she might 1) fail to surrender to custody as the court may appoint 2) commit an offence whilst on bail what really concerning the court was the committing an offence on bail because she seems to have history of doing this. This is the main challenging ground. 3) interfere with a witness or pervert or obstruct the course of public justice Other grounds CPO 9G(3)-(10) The magistrates have power to grant bail with or without (unconditional) conditions. Prosecution will be asked whether any objections to bail and on what grounds. (solicitor should obtain info on this in advance of hearing) It is not for the defence to prove a bail should be granted. Prosecution must prove that bail should not be granted and can only rely on one of the

grounds above. 9G(1) CPO. In doing so, they can only raise one of the three grounds normally. After conviction, there is no right to bail. Court can have regard to such matters as seriousness of offence if the offence is very serious, there is going to be a custody sentence, background, home environment, the more secure the more stable the background and home environment, the more they will not abscond history of bail always attend? any good reason not to attend? , antecedents antecedents of themselves are not good grounds for refusing bail, but if somebody has got a long record on offending and they have not yet got to prison, this time the court might be considering custody based on they have not learnt the lesson., conduct of the accused (see para 5.66) Practicality is important here. In Alices case, most likely objection may be that she will commit an offence on bail to feed her habit to carry on gambling. But the point is she has not offended for quite a while and making some progress, so the gambling seems to be under control. Why she suddenly reverse to this offence again? When you dealing with ground, ask the prosecution can I Check the record with regard to previous bail (i.e. any offences committed whilst on bail) then you will be able to contrast that she has committed offence on bail but that was a long time ago. Now she has got a good job, good familyshe is not going to abscond. Why ruining her career by purring her in custody? Equally it may be feared that she might not turn up and the prosecution may rely on the ground of failure to surrender, to refuse bail. There is a lot stability going on her, she is not likely to fail to surrender. Her parents will make sure she will come to court next time, and she lives with them. Condition precedent. She has a very good job as a paralegal and good salary. Why would she turn that away by not coming? anything show stability we need to be doing. You would need to check whether the theft is serious enough and whether it will warrant custody even allowing for her record. On the offence itself, check as well whether this offence will warrant custody on its own even lack of record. so make sure you know what the likely sentence would be. Check with the prosecutio What is the evidence against her? No, one thing you can address to court is that the evidence is very week. Why

would you keep someone in custody if she will be acquitted very quickly on the trial? She is likely to get a bail if the theft was not very serious. Even if it was, would it warrant custody on its own? ONLY if the theft is particularly serious (likely to warrant custody) or she has a history of absconding whilst on bail no evidence on that should bail be a problem here. In any event any remand would interfere with the good progress Alice appears to be making with her treatment and counselling. (This could be raised) Also she is in stable employment and any remand would have serious implications for her future. Alice should be granted bail in these circumstances. However the Court may be minded to impose conditions of bail. On the facts probably a condition of residence would be appropriate (given her loving family background) Also possibly a cash deposit under section 9D(3) (b) (viii) CPO. Given that she is in good employment. Finally a condition possibly (if all thefts are shoplifting from a certain area) that she does not go within a specified distance of shops or in a certain street (e.g Nathan Rd. Section 9D (3) (b) (vii). If Alice is successful explain to her the risk of failing to surrender on the next court date. Failing to surrender is a separate criminal offence 9L(1) CPO. Clerk will in practice say this to her. Fine of up to 75000 HKD 6 mths imprisonment. b. Chan pleads not guilty to a charge of robbery. Chans list of previous convictions reveal that he has twice been convicted for robbery type offences which were committed whilst he was on bail for other matters. Chan is also a member of a gang that has been responsible for similar robberies. None of the proceeds from the bank robberies have been recovered. Chan is a loner who lives in a bedsit on his own in Wanchai and has no family or friends other than other gang members who all have criminal records. Chan has also been unemployed for many years. Coupled with this, several witnesses saw Chan commit the

robbery and have been able to positively identify him. Chans bail application Barry also has a p/f right to bail section 9D(1) CPO UNLESS Section 9G(1) of CPO applies. i.e. substantial grounds for believing he will 1) fail to surrender to custody as the court may appoint 2) commit an offence whilst on bail 3) interfere with a witness or pervert or obstruct the course of public justice Prosecution may have a few objections here. 1) History of committing offences on bail 2) Also he may abscond (likely prison sentence for robbery depending on seriousness + seems a number of witnessed ID Chan so evidence may be strong) 3) May also interfere with witnesses if he knows them (threats to those who may ID him) Care needed in dealing with the issue of the gang members at large. Potential issue under the third ground of objection( ground of perverting or obstructing the course of public justice) If bailed Chan may try to contact the gang members and warn them thereby obstructing the investigation (perverting the course of justice for example by enabling proceeds of robbery to be laundered) Prosecution must show there is evidence for believing this though. Any history of this type of behaviour previously? Is it enough that he has previous robbery convictions? Not enough! Must show one of the three grounds! Chan may not get bail here. There seems little in favour of it, particularly given the nature of the offence, his history of bail and risk of him absconding. In order to obtain bail. Need to overcome some serious hurdles. What can be said positively, if anything? He has no close family ties, lives alone and only associates with criminals? Unemployed? Poor history of offending on bail? Evidence may be strong against him? Best option may be to argue if ID is only evidence against him that case is

weak and therefore he will be unfairly remanded however for reasons given this may be unsuccessful. Chan can make a further application for bail at a later stage if there is a change in circumstance: for example, change in the nature of the offence against him, or you find out recently the person ID him has previous conviction of dishonesty. Section 9G(11) CPO Perhaps the pros case turns out to be weaker than first thought (change of circs) Maybe an appn to CFI judge. Robbery is likely to be committed there. Any conditions currently imposed may not satisfactorily answer the prosecutions objections in this case.

i.

Under s. 9G(1) CPO what grounds might be given by a Court for not

granting bail to an accused making a first appearance in court. Q(i) Reasons for refusing bail Substantial grounds for believing one will: 1) fail to surrender to custody as the court may appoint 2) commit an offence whilst on bail 3) interfere with a witness or pervert or obstruct the course of public justice See S9 G (3)-(10) CPO (note in particular (3) where D can be refused bail if 18 or over, and it is felt he ought to be RIC for his own protection; gang example or he is under 18 and RIC is for his own protections safety or welfare; drug addicted parent or further inquiry is being made with regard to the Q of bail and decision cannot be made yet. Letter of employment, bringing with passport, cash Hospital order, deportation order ii. Give examples of common conditions imposed by a Judge or magistrate when granting bail to an accused.

Q (ii) Common bail conditions Recognisance by surety (not allowed by D before court although police bail can include this) D himself cannot be as a surety Cash bail by D or surety. Check is good enough Residence/curfew Reporting

 No contact with named persons Surrender of travel docs Geographical restrictions workable Q(iii) Review of bail When does a CFI judge consider bail under s9J CPO? S9J (1) CPO application by D to review DC or Mags refusal to grant bail/or to challenge any condition imposed. What is the procedure for applying for bail to a CFI judge? By way of summons+affirmation (plus exhibits if necessary (must be fully detailed) See templates in book. What powers does the CFI judge when considering an application by an accused to review an original decision taken by a Magistrate to remand an accused in custody. Under S9J(2) confirm, revoke or vary decision to Remain In Custody or impose any condition and can also make order for costs if required (the review decision is not itself reviewable HKSAR v Siu Yat-leung [2002] 2 HKC 175. Normally you cannot ask the CA judge to review the CFI judge decision on bail application.