Bail

The law of bail in Hong Kong is based on the common law.  The right to bail is also implicit in the right to the inviolability of the person in Article 28 of the Basic Law which provides (in part):

The freedom of the Person of Hong Kong residents shall be inviolable.

No Hong Kong resident shall be subjected to arbitrary or unlawful arrest, detention or imprisonment.

The need for to consider whether an accused person should be released, or detained in custody, arises at several stages of the criminal trial process, including:

Pre-conviction

• • when first arrested
  • arrested on a charge or charged after arrest
  • fails to appear in court
  • first appears in court
  • not convicted or not acquitted

Post-conviction

• • bail pending sentence
  • bail pending appeal

Who may grant bails

In addition to bails granted by court, subject to the nature of the matters involved and the stages of investigation and/or inquiry, bails may also be granted by, among others, the Police pursuant to the Police Force Ordinance (Cap 232), the ICAC pursuant to the Independent Commission Against Corruption Ordinance (Cap 204), the Coroners pursuant to the Coroners Ordinance (Cap 504), and the Immigration Department under the Immigration Ordinance (Cap 115).

Bail conditions imposed by Court

Subject to sections 9G and 9D(1) of the Criminal Procedure Ordinance (Cap 221), a court shall order that an accused be admitted to bail, whether has been committed to for trial or not. This position is qualified in that the court is empowered to impose conditions on the grant of bail where the circumstances in section 9D(2) of the of Criminal Procedure Ordinance exist. Bail may only be refused where it appears to the court that there are substantial grounds for believing that the circumstances in section 9G of Criminal Procedure Ordinance exist.

The type of conditions which may be imposed to secure these objectives includes a requirement that the person admitted to bail may include:

• surrender to the court any passport or travel document;
• not leave Hong Kong;
• report to a police station;
• reside at a specified address and be present therein between such times;
• not enter any place or premises;
• not go within such distance of any place;
• not contact directly or indirectly such person; and
• enter into a recognisance or be performed by a surety.

Surety

A surety is a person who guarantees the performance of an accused person’s obligations and agrees to forfeit a sum of money if the accused person makes default.

A person who offers himself as a surety for an accused has a duty to see to it that the accused will attend court on the day appointed and to have him brought to court if necessary. He thus expresses his confidence in the accused’s not absconding and offers to risk the money required on his confidence being justified. The bail authorities rely heavily on the confidence so expressed by the undertaking of the surety.

Qualifications of a surety

Sureties must be of sufficient ability, and may be examined on oath as to their means. The Sureties’ financial resources, character and previous convictions, and proximity (including relationship) with the accused will be considered by the Court.  Infants and persons in custody cannot be sureties.  A person whom the accused has agreed to indemnify will not be accepted.

What if the defendant fails to appear

The surety may be summonsed to appear before the Court to explain why the defendant failed to attend court and / or failed to comply with any condition imposed by the Court.  Further, the deposit put forward by the sureties will be forfeited. 

Recent decision highlighting the obligations of sureties (香港特別行政區 v 馬鐘鴻 及其他 [2023] HKDC 436)

In June 2021, Mr. Ma Zhonghong (Mr. Ma) unlawfully entered into Hong Kong by sea. Three months later, he surrendered to the Immigration Department and expressed a desire to be repatriated to Mainland China. At the time when Mr. Ma was detained by the Immigration Department, ICAC charged him with money laundering in another case.  Mr. Ma was subsequently charged in two different cases, namely STCC 2969/2021 (for unlawfully remain in Hong Kong) and STCC 3381/2021 (for money laundering).

On 24 May 2022, Mr. Ma successfully applied for bail with several stringent conditions, including recognizance be deposited by three individuals (namely, Ms. Law, Ms. Lam and Mr. Ho) who served as sureties of Mr. Ma.  Set out below is a summary of the amount of deposited put forward by each of the sureties:

On 25 October 2022, Mr. Ma failed to appear at the Court for the mention hearing. Consequently, the Court ordered to forfeit all the security provided by the sureties.  The sureties subsequently applied to the Court for the release of the forfeited security.

Arguments contended by Ms. Law

Ms. Law, a 55-year-old married woman.  She is the sister-in-law of Mr. Ma.  She lived in Shenzhen with her husband (an older brother of Mr. Ma), her son and two of her daughters. She has been a housewife all along.  Ms. law’s husband has been unemployed for 8 to 9 years after undertaking a kidney transplant.  Ms. Law suffered from hypertension, diabetes and heart disease. The monthly medical expenses for her family was around HK$15,000.  The deposit put forward by Ms. Law represented her savings accumulated over many years.

Arguments contended by Ms. Lam

Ms. Lam, a 57-year-old divorcee.  She is Mr. Ma’s cousin.  She worked as a waitress and earned around HK$12,000 per month. A third of her monthly income was used to pay rent.  Furthermore, a proportion of her income would be used to purchase medications which she has been advised to take since 2019.  Ms. Lam indicated that she spent approximately HK$3,800 on medical consultation 10 days before the hearing.

Arguments contended by Mr. Ho

Mr. Ho, a 86-year-old man. He has known Mr. Ma for decades and his nephew used to work for Mr. Ma.  Mr. Ho was suffering from prostate cancer, hypertension, high blood pressure, and  high blood sugar.  

Court’s decision

The Court emphasized that a surety has heavy and great burden to bring the defendant back to the Court.  Surety is required to provide compelling reasons for retrieving the security.[1] The responsibility on the surety to prove whether part or all of the cash surety shall be returned shall at a high standard.[2] Absence of culpability is not sufficient; proactive measures to monitor the accused’s actions and whereabouts are paramount.[3]

Despite the unfortunate conditions that Ms. Law, Ms. Lam and Mr. Ho, the Court held that they failed to take active and appropriate measures to secure Mr. Ma to appear before the Court, and that the deposits put forward by them would be forfeited. 

Key takeaways

In the event that the accused fails to comply with bail conditions or absconds, the deposit put forward by the surety would be forfeited. It is essential for one to fully understand the nature of his responsibilities and obligations before agreeing to serve as a surety.  If a surety considers that the accused might not surrender to custody or might fail to comply with all the bail conditions, the surety should immediately seek legal advice. 

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[1] R v Horseferry Road Stipendiary Magistrate, Ex p Pearson [1976] 1 WLR 511 at 514C-D

[2] Wan Shui-ying & Another v Attorney General [1990] 2 HKLR 139 at 143F-144A

[3] Choudhry and Hanson v Birmingham Crown Court [2007] 10 WLUK 731

Alfred Leung, Partner (alfredleung@hkytl.com; 852 3468 7202)

Ariel Kong, Trainee solicitor

YTL LLP is a law firm headquartered in Hong Kong, China.  This article is general in nature is not intended to constitute legal advice.