Lecture 7 –

Bail

Gigi Ho

Barrister-at-law
Introduction

– Release on an undertaking to surrender

– Admitted to bail under s.9C of the Criminal Procedure Ordinance (Cap. 221)

– Involves the personal liberty

Police Bail

– Section 52 of the PFO: police should, after inquiries, release an arrested person
(AP) on bail unless an offence is serious or the officer reasonably believes it is
necessary to detain that person.
– AP may be discharged by police bail where it appears to the police that
necessary inquiries into the case cannot be completely immediately
– Examples: precise charge to be laid has not been settled
 Police Bail
Bail Money:

Amount is set
– Such bail is not unconditional – s.50(3) of PFO with regard to all
circumstances of
the case, e.g.
seriousness and
Surety = a person
circumstances of
prepared to
the person
guarantee that
the arrested
Can be forfeited if
person will turn
AP failed to turn
up at
up at the
the appointed
appointed time
time and date
and date
 Police Bail

In practice, once AP has

been charged, he will be
brought to the MC ASAP
Bail in Court

– Magistrates’ courts
– a magistrate has the power to grant bail to Ds charged with any offence except
murder or treason (for which bail must instead be granted by a judge of the Court of
First Instance or a Justice of Appeal).
– In practice, bail normally granted in where:
– Ds is convicted upon his guilty plea for a simple criminal charge and sentencing is adjourned
to another hearing date, pending reports e.g. probation order report and community service
order report
– D PNG and the case is adjourned to anor hearing date for trial
– Transfer or committal
– No plea taken
Bail in Court

– District Court
– power to consider bail when D’s case has been transferred to the court and D
appears before it (s9D of the CPO).
– If the case is appealed to CA, DC judge have no statutory power or inherent
jurisdiction to grant bail pending such an appeal, as this is a matter for CA
Bail in Court

– Court of First Instance

– wide powers to grant bail:
– D in trial
– When DC judge or magistrate has refused to admit D to bail or has admitted the
defendant to bail subject to conditions, D can apply to a CFI judge for bail or for a
variation of the bail conditions.
– Not an appeal procedure and the application takes the form of a new hearing
(hearing de novo) (s9J(1) of the CPO).
– No appeal against a decision of the CFI on bail applications
Bail in Court

– Court of Appeal
– Admit appellant to bail pending the determination of an appeal to the Court of
Appeal.

Pending Sentencing or appeal

– Even after D has been convicted, it is still possible for D to be granted bail
– Exceptional circumstances: strong appeals for appeal or D would have already served
at least substantial part of his custodial sentence before the outcome of the appeal
can be determined.
– In practice, only granted bail if it is unlikely that a custodial sentence will be imposed
– If likely that a custodial sentence will be imposed, the court will normally place D in custody
& revoke the previous bail of the D
Right to Bail

– Article 5(3) of the BORO:

– “Anyone arrested or detained on a criminal charge shall be brought promptly

before a judge or other officer authorised 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 judgment.”
Right to Bail

– Article 28 of the Hong Kong Basic Law: no Hong Kong resident may be subjected
to arbitrary or unlawful arrest, detention or imprisonment.
– right to bail is only a qualified right under ss9(D) and (G) of the CPO. A court
may grant bail to a person at any time and may revoke the bail granted at any
time if the circumstances warrant.
– Burden of proof: on P to satisfy the court that there are cogent reasons why bail
should not be granted.
 Right to Bail
Generally, the
court shall order
an accused person
to be admitted to
bail,
whether they
have been
committed to trial
or not, when the
accused is
brought before
the court or an
application is
made to the trial
court for trial
Right to Bail

– Exceptions i.e. bail should not be granted – s. 9G(1)

 Right to Bail

Court’s considerations:

D’s criminal record

Strength of P’s evidence
Right to Bail

– Usual Court conditions:

– Cash deposit
– recognizance by a surety;
– reporting regularly to a police station while on bail;
– prohibition against leaving Hong Kong;
– a promise not to interfere with prosecution witnesses; etc
Bail Application

– Formal evidence is rarely called

– on reasonable probabilities
– court will normally begin by asking if P has any objections to bail
– If P objects, what is the ground for its objection?
– If P does not object, what is the condition suggested by P?
– D’s lawyer: address P’s arguments and persuade the court to grant a bail
– D’s lawyer should not make any admission prejudicing client’s interests e.g.
making an admission or addressing certain facts of the client’s case in a way
that might limit the possible defences that could be mounted at a subsequent
trial.
Defence submissions for
granting bail
– Take instructions from client :
– the details of the offence as alleged by the prosecution, the client’s own account of
the circumstances of the offence and an initial assessment of the evidence
supporting the prosecution’s case;
– the client’s background, residence, family, employment, health and previous record;
and
– the bail terms that can be offered
Defence submissions for
granting bail
– 1. The offence is a minor one.
– 2. The prosecution evidence is weak. For instance, the main evidence comprises
the identification evidence of a witness who saw the accused only once for a
brief moment and could have made a mistake as to the identity.
– 3. The accused is not likely to abscond. For instance, the accused has family ties
and a permanent residence in Hong Kong. The accused has steady employment
and a good and reputable background.
– 4. The accused has no history of absconding. For instance, the defendant has
complied with the requirements to report for police bail.
Defence submissions for
granting bail
– 5. The accused has no previous convictions or any previous convictions are
clearly distinguishable from the present case.
– 6. There is no likelihood of the accused interfering with prosecution witnesses
and the accused is prepared to give an undertaking not to directly or indirectly
interfere with prosecution witnesses.
– 7. There is no likelihood of the accused committing further offences if admitted
to bail.
– 8. There will be a long period or delay before trial.
Defence submissions for
granting bail
– 9. The accused is willing to surrender travel documents, report to a police
station as the court sees fit or obey a curfew if necessary.
– 10. In the case of bail pending appeal:
– there will be a long delay before the appeal hearing
– the appeal has a high likelihood of success
– the sentence will have been served or substantially served before the determination
of the appeal; and/or
– it facilitate the convicted person to prepare their appeal and in instructing their
lawyers.
Restriction on reports of bail
proceedings
 Restriction on reports of bail
proceedings
– information relied upon by the defendant in the bail application can be used by the
prosecution as evidence against the defendant in the trial proper.
Nancy Ann Kissel v HKSAR (2010) 13 HKCFAR 27:
– D was charged with murder and at the trial expert evidence was adduced with a view to
establishing the defence of diminished responsibility.
– P cross-examined D based upon evidence given in her bail application, including
submissions on her behalf by her counsel to show that in the bail proceedings the D had
put herself forward as a person with no psychiatric problems.
– This had become a ground of appeal by D and the accused succeeded on this ground
because of the way in which P conducted the cross-examination on this topic.
– CFA refused D’s contention that there should be total immunity of the bail proceedings in
the subsequent trial
Prosecution’s submissions
against granting bail
– 1. The offence is serious.
– 2. The prosecution evidence is compelling.
– 3. The circumstances surrounding the arrest of the applicant. For example, the
accused resisted arrest or subsequently attempted to escape from custody. The
accused was caught red-handed, or the offence was recorded on CCTV. The last
two examples show that the accused has a weak case.
– 4. The accused has no strong connection to Hong Kong. For instance, the
accused has no family here or is unemployed or has no permanent residence in
Hong Kong.
Prosecution’s submissions
against granting bail
– 5. The accused has easy access to means of leaving Hong Kong. For instance, the
accused is a fisherman.
– 6. The accused has previously been admitted to bail but absconded.
– 7. The offence is alleged to have been committed whilst the accused was on bail
for another offence.
– 8. The accused has similar previous convictions.
– 9. The accused is likely to interfere with witnesses.
– 10. The accused is likely to commit further offences if allowed bail.
 Repeat bail applications

– S.9G(11) of CPO

3rd application onwards,

court will be obliged to
hear arguments only if
there has been material
change in relevant
circumstances

E.g. excessive delay in

bringing the case to
trial (R v Chu Kwok
Wah,)
Bail Conditions

– Cash Bail
– a sum of cash deposited with the court by D or a person on D’s behalf.
– amount must be reasonable in all the circumstances (e.g. financial means of D )
– court must bear in mind that the sum should not be fixed so high as to be unrealistic
and beyond the means of D .
Bail Conditions

– Cash deposit or recognisance by sureties

– surety is obliged to take all steps to ensure the accused will attend court on the next
hearing date.
– A surety can only provide her own cash as bail, and it is a crime for someone else to
indemnify a surety (s9F of the CPO).
– The solicitor or the solicitor’s employee cannot be a surety for their client.
– The surety has to accompany the accused to appear in court on every occasion. If the
surety learns that the accused is likely to abscond, she can use force to bring the
accused
– to court.
Bail Conditions

– S.9D(3) of the CPO: court has wide power to impose any other conditions that
are necessary to ensure D will surrender to court
– Surrender to court any passport or travel document;
– not leave Hong Kong;
– report to a police station or the offices of ICAC at such interval of times as the court
may specify;
– reside at a specified address and be present therein between such times as the court
may specify;
– not enter any place or premises as the court may specify;
– not go within such distance of any place or premises as the court may specify; or
– not directly or indirectly contact any such person as the court may specify.
Preparation for D

– Difficulty in fulfilling the Bail conditions

– Cash as bail money
– Surety?
– Travel documents?
– Reporting conditions
Failure to surrender to bail

– 1. If she fails to surrender to custody without reasonable cause, an offence is

committed under s9L(1) of the CPO. A warrant for her arrest may be issued by
the magistrate.
Failure to surrender to bail

– 2. The cash deposit of the bailed person and her surety may be forfeited.
– 3. The recognisance of surety may also be liable to be forfeited.

– However, the court has the discretion to decide whether or not to order any
forfeiture and, if so, whether it should be forfeiture of the full amount.