• 保釋⋯|戴啟思
  • 2020-10-01    

 

‘If you feel so happy you land in jail; I’m your bail.’

(Song ‘Friendship’ from the musical ‘Anything Goes’ by Cole Porter)

Judges and magistrates are having a hard time of it. People make complaints of bias about court decisions every week. Some are about supposedly harsh decisions, and some are about allegedly excessively lenient ones.

What these complaints have in common though is ignorance. Ignorance about how judges and magistrates go about their tasks and the procedural law that shapes and constrains their decision-making.

I have no time to explain the criminal processes from charge through to trial and, if there is a conviction, to sentence and a possible appeal.

I will keep it simple. I have noticed that many of the gripes are about court bail. Some people seem to think that judges and magistrates should not grant bail to persons accused of some public order offences, or they should grant bail to them only with very onerous conditions attached.

Let me explain how the law about bail works.

First of all, when a person faces a criminal charge which carries a prison sentence, there is, by law, a presumptive right to bail. That means the accused will get bail unless the prosecutor can make out a case to justify the judge or magistrate to withhold bail. This rule applies in all cases.

The right to bail is an essential feature of criminal law. The principle is that until and unless the accused is convicted, they are presumed to be innocent. You do not lock up people who are presumed to be innocent to await a trial that may be months away unless there is an excellent reason to do so.

The law recognizes therefore only four grounds or reasons for a judge or magistrate refusing bail to a person accused of a crime. They are that substantial grounds exist for believing that the accused would: (i) fail to surrender to custody at a later date; (ii) commit an offence while on bail; (iii) interfere with witnesses; or, (i) pervert or obstruct the course of justice.

The burden is, naturally, on the prosecution to show that one or more of these substantial grounds exist. They want to take away a person’s freedom, and so they need to make out a case. If the prosecutor cannot discharge this burden, the accused person is entitled to release on bail.

The prosecutor can point to various facts which may assist the judge or magistrate in concluding that substantial grounds exist for believing that one or more of the four matters justifying denying bail exists.

For example, if the accused has been granted bail on a previous occasion but did not turn up for the trial, then there is a good chance that he or she might not turn up again and bail will not be granted.

The seriousness of the offence and the likely disposal of the case in the event of a conviction is another relevant matter. Our courts deal harshly with people who are convicted of the offence of dealing in dangerous drugs. Prison terms are measured in decades, not years. The temptation to flee as a 25-year-old who may be 40 when they finish a prison sentence may be very significant indeed, and so bail may be refused.

Sometimes, a judge or magistrate may require more by way of reassurance. An accused may have to secure a friend or relative to act as a guarantor to ensure attendance at the trial. This person may have to put up a substantial amount of money as a pledge which will be lost if the accused runs away.

The bail law helps the judge or magistrate in his or her assessment of risk. It is not a simple case of letting the accused walk free or locking them up until trial. The judge or magistrate can attach conditions to the grant of bail, which minimizes the risk of one of the four substantial grounds happening.

If there is a risk of the person running away because of the prospect of a hefty sentence if there is a conviction, a judge or magistrate can require the accuse to surrender their passport or travel document and not leave Hong Kong. It happens too that a cash sum is lodged with the court to provide security against the accused not turning up.

If the case is one where the accused knows civilian witnesses well, and he or she might be tempted to talk to them and persuade them not to give evidence or modify the evidence that they might provide, the judge or magistrate might direct that the accused does not contact them.

If a judge or magistrate refuses bail or attaches conditions which are not acceptable to the accused, the decision can be reviewed bail in a short space of time by a High Court judge who can make an entirely new decision. The accused will have a proforma bail sheet provided by the judge or magistrate which will record precisely the grounds relied on for refusing bail or attaching conditions. No one is in the dark about why the judge or magistrate made the decision.

The prosecution is not without recourse if bail is granted and it feels that it should not have been. A prosecutor can also apply to a High Court judge to seek to have the decision reviewed.

This brief description of how judges and magistrates deal with bail applications should dispel some myths, in particular the idea that bail decisions are made whimsically or without much thought.

Judges and magistrates sometimes grant bail, and the accused runs away or commits offences on bail. However, that is a price that the community pays for the presumption of innocence to which we are all entitled and should better understand.

Imagine, if you can, the misfortune that might befall you of being charged with a criminal offence and refused bail only to be acquitted of all charges some nine wasted months later.



About the author

Philip Dykes is a Senior Counsel. He has lived in Hong Kong for over thirty years. His interests are in literature, language, history, fine art and photography. He worked as government lawyer until 1992 and he is now in private practice.

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