Hon Yeung V-P (giving the reasons for judgment of the Court):
高等法院上訴法庭副庭長楊振權頒發上訴法庭判案理由書：

Background
背景

The appellant, Chan Yuen Yee Carrie, entered on 13 January 2015 a room and a locker room on the 7th floor of a hotel in North Point from where she took away 5 towels engraved with the name of the hotel and an electric kettle. The properties were worth about $330. She was stopped by hotel staff when she was leaving with them. The hotel staff recovered from the paper page the appellant carried the aforesaid towels and electric kettle. The police was called.
上訴人（陳婉兒）在2015年1月13日進入北角一酒店7樓的一房間和一儲物室，拿走價值約330元的5條刻有酒店名字的毛巾和一個電熱水煲後離開時，被酒店職員截停。酒店職員在上訴人攜帶的紙袋內找回上述毛巾和電熱水煲後報警。

As a result, the appellant was charged with one count of burglary and was finally arranged to stand trial in the District Court on 13 May 2015. Before the trial, she was granted bail. One of the bail conditions was she had to pay cash bail in the sum of $40,000.
結果上訴人被控一項入屋犯法罪，並最終被安排在2015年5月13日在區域法院接受審訊。審訊前，上訴人獲保釋而保釋條件之一是她要支付4萬元現金保釋金。

The appellant did not show up for trial on 13 May 2015 as scheduled. But both the counsel and the solicitor the Legal Aid Department assigned to represent her attended court.
2015年5月13日，上訴人沒有依期出庭應訊，但法援署委派代表她的律師和大律師都有出席。

The trial judge, Deputy District Court Judge Marco Li, ordered a warrant of arrest be issued for the arrest of the appellant after hearing the submission of the counsel representing her.
處理案件的區域法院暫委法官李國威（主審法官）聆聽完上訴人代表大律師的陳述後，頒下拘捕令緝拿上訴人歸案。

In the afternoon of the following day, that was 14 May 2015, the appellant surrendered herself to court. She explained to the court that she was unable to attend court at the time as had been appointed because she had to go to the Accident and Emergency Unit of the Kwong Wah Hospital to seek medical attention in the small hours of the trial day.
上訴人在翌日，即2015年5月14日下午向法庭歸案。上訴人向法庭表示審訊當天凌晨時分因要去廣華醫院急症室求診，故此未能依期出庭應訊。

Counsel representing her produced to the court an attendance note from the Accident and Emergency Unit of Kwong Wah Hospital showing that the appellant was in the A&E Unit of the Hospital at 5:24am of 13 May 2015.
上訴人的代表大律師向法庭出示一張廣華醫院的急症應診紙，內容顯示上訴人在2015年5月13日凌晨5時24分身處廣華醫院的急症室。

Counsel further informed the court that the appellant was hit on the head by a falling cabinet at home at 4am on 13 May 2015 which made her feel discomfort and nauseous. As a result, her friend accompanied her to go to Kwong Wah Hospital to seek treatment.
上訴人的代表大律師再向法庭表示，上訴人在2015年5月13日凌晨4時，在家中被一個倒下的櫃打到頭部，令她感到不舒服及有嘔吐現象。結果，她由朋友陪同前往廣華醫院求診。

According to the appellant, as she had head injury and was nauseous, doctor of the A&E of the Hospital admitted her into a ward for observation and only allowed her to leave sometime after 4pm of the same day. She went on to say that as she had lost her identity card, she was not able to obtain the relevant medical report to support her story.
根據上訴人的說法，由於她頭部受傷，亦有嘔吐現象，廣華醫院急症室的醫生將她收入病房觀察直至同日下午4時多才批准她離開。上訴人續稱因為失去了身份證，故未能取得有關醫療報告支持她的說法。

She said she did not to go a police station to surrender herself as she was legally advised to because after she had left the Hospital, she had to go back home to look after her two children and also she still felt discomfort. However, she had already arrived at the court on the following day before the court sat. She urged the court to accept that she had no intention to abscond.
上訴人亦表示離開醫院後，要返回家中照顧兩名子女及因為仍然感到不舒服，故沒有按律師的指示去警署自首，但她在翌日開庭前已到法庭應訊。上訴人力稱自己無意棄保。

The trial judge clearly had doubt about her claim that she had lost her identity card but yet could still receive treatment in Kwong Wah Hospital. He pointed out that before treatment was given, patients had to pay a fee first, and for patients who were non-Hong Kong residents, the fee required was much higher. Counsel for the appellant immediately explained to the trial judge that she only lost her identity card during her hospitalization.
主審法官明顯對上訴人聲稱她失去身份證但仍然能在廣華醫院接受治療的說法存疑。主審法官指出接受治療前，病人需先付費；而非香港居民的病人，則更要支付昂貴的費用。上訴人的代表大律師隨即向主審法官解釋上訴人是在留院期間才失去身份證的。

The trial judge did not accept the appellant’s explanation. He pointed out that the attendance note that the appellant submitted only showed that she had been to the A&E Unit at 5:24am on 13 May 2015 and her condition was assessed as semi-urgent. But she did not have any evidence to show that she had to stay in the Hospital and therefore could not attend court at the time as had been appointed for trial as a result.
主審法官不接納上訴人的解釋。他指出上訴人呈交的應診紙只顯示上訴人在2015年5月13日早上5時24分到過急症室，而其狀況被評為次緊急，但上訴人沒有任何證據，顯示她要留在醫院而導致她不能依時出庭應審。

The trial judge further said that he found it even harder to accept her claim that she only lost her identity card during hospitalization and therefore could not obtain a medical report.
主審法官表示他更不能接受上訴人是在留院期間才失去身份證，令她未能取得醫療報告的說法。

The trial judge took the view that the appellant had failed to show reasonable cause for not attending court at the time as had been appointed and ordered that her bail be revoked and the $40,000 bail money be confiscated in full (“the confiscation order”). The confiscation order was made pursuant to section 9M(1)(b) of the Criminal Procedure Ordinance (“the Ordinance”).
主審法官認為上訴人沒有合理理由解釋她不能依時出庭，並因此決定撤銷上訴人的擔保，及將其4萬元保釋金全部充公（“充公令”）。“充公令”應是根據《刑事訴訟程序條例》（“《該條例》”）第9M(1)(b)條作出的。

On 11 June 2015, the appellant pleaded guilty to burglary before another Deputy District Court Judge and was sentenced to 22 months’ imprisonment. Aggrieved with the sentence, she applied for leave to appeal against sentence. On 30 November 2015, she informed the court that she abandoned the said application for leave to appeal against sentence and the application was dismissed.
2015年6月11日，上訴人在另一名區域法院暫委法官席前承認入屋犯法罪後被判入獄22個月。上訴人不服判刑，曾提出上訴許可申請要求獲准就判刑上訴。2015年11月30日，上訴人知會法庭，取消該減刑上訴許可申請，而申請亦已被撤銷。

Aggrieved by the confiscation order, the appellant took out a notice to apply to the Court of Appeal to appeal out of time against it. On 16 December 2015, a single judge of the Court of Appeal allowed her application to appeal out of time against the confiscation order. On 19 February 2016, the appellant applied further to the court to treat her abandonment to appeal against sentence filed on 30 November 2015 as a nullity so that she could re-commence proceedings to appeal against the sentence.
但上訴人不服“充公令”，並在2015年6月23日，提出逾期上訴許可通知書，要求上訴法庭推翻“充公令”。2015年12月16日，上訴法庭單一法官批准上訴人就“充公令”提出逾期上訴。2016年2月19日，上訴人再提出申請，要求法庭視她在2015年11月30日存擋的放棄減刑上訴申請的通知書無效，以便她能重新就有關判刑提出上訴。

The appellant was represented by Mr Wong Hay Yiu of counsel in her appeal against the confiscation order and was acting in person in the application to treat the notice of abandonment as a nullity.
就針對“充公令”的上訴，上訴人由王熙曜大律師代表。就要求法庭視她放棄減刑上訴通知書無效的申請，上訴人沒有律師代表，親自行事。

Application to treat the notice of abandonment as a nullity
視放棄上訴通知書無效的申請

When a defendant who has been sentenced clearly indicates that he will abandon an application to appeal against sentence and the application is dismissed as a result, unless he can prove that when he abandoned the appeal, he did not know the nature of the notice of abandonment and the consequences that come with his signing of the notice, he has no right to bring it up again to ask the court to deal with his application afresh. (see HKSAR v Law Kam Fai and another [2006] 2 HKLRD 879, HKSAR v Ip Wai Ho, Micky [2015] 5 HKLRD 567, HKSAR v Lai Siu Cheung [2005] 1 HKLRD 1, HKSAR v Luo Shui Ji [2007] 3 HKLRD 114). That a defendant changes his mind after abandoning an application to appeal against sentence is not a ground in support of an application to treat the notice of abandonment as a nullity.
當一名被判刑的被告人表明會放棄減刑申請，導致申請被撤銷後，他無權重提舊事，要求法庭重新處理其申請，除非他能證明他放棄申請時，不知悉其簽署的放棄上訴通知書的性質及他簽署該通知書會導致的後果。（見HKSAR v Law Kam Fai and another [2006] 2 HKLRD 879、HKSAR v Ip Wai Ho, Micky [2015] 5 HKLRD 567、HKSAR v Lai Siu Cheung [2005] 1 HKLRD 1、香港特別行政區訴羅水基 [2007] 3 HKLRD 114等案）。被告人放棄減刑申請後，改變主意並不構成視放棄上訴通知書無效的理由。

The appellant stated clearly in the Notice to Abandon an Application for Leave to Appeal filed on 30 November 2015:
上訴人在2015年11月30日存檔的放棄上訴許可申請的通知書內表明：

“I, Chan Yuen Yee Carrie, 303400, decide to cancel the appeal (against sentence) after careful consideration.”
“本人陳婉兒303400考慮清楚後，決定取消上訴（減刑）。”

In her application to the court to treat her notice of abandonment as a nullity on 19 February 2016, she merely stated:
上訴人在2016年2月19日要求法庭視她的放棄上訴許可通知書無效時，只是說：

“Because I have new ground now so I apply to the court afresh to appeal (against sentence).”
“因為現在我有新理據所以重新向法官大人申請上訴（減刑）。”

The appellant did not say that when she signed the notice of abandonment, she did not know the nature of the notice and the consequences that her signing on it would lead to. She decided to abandon the appeal only after careful consideration. That she claimed she had new ground to show that the sentence was excessive is not a reason to support her application to treat her abandonment as a nullity. There is no basis for this court to treat the notice she signed to abandon the application for leave to appeal against sentence as a nullity. Her application to ask the court to treat the said notice as a nullity is dismissed. This court needs only consider her application to appeal against the confiscation order.
上訴人並沒有指她簽署放棄上訴通知書時，不知悉該通知書的性質及她簽署該通知書會導致的後果。上訴人是經考慮清楚後，才決定放棄申請。上訴人指她有新理據顯示其判刑過重，亦非支持視其放棄上訴通知書無效的理由。本庭沒有基礎視上訴人已簽署的放棄減刑上訴申請的通知書無效。上訴人要求法庭視該通知書無效的申請須駁回。本庭只需考慮上訴人針對“充公令”的上訴。

The appeal against the confiscation order
針對“充公令”的上訴

In order to strengthen her appeal, the appellant requested that this court should admit some medical reports as new evidence.
為了強化其上訴，上訴人要求本庭採納一些醫療報告為新證據。

She maintained that she was admitted to the Hospital on 13 May 2015 because she was ill and therefore was unable to attend court for trial at the time as had been appointed. The new evidence that she produced proved that she had to stay in the Hospital for observation on 13 May 2015 until 3pm due to head injuries. She later returned to the Hospital where she stayed in the observation ward until 6:45pm the same day.
上訴人堅稱她在2015年5月13日是因病入院，故不能依期出席審訊。她提出的新證據證明她在2015年5月13日因頭部受傷而要留院觀察至同日下午3時。其後她再返回醫院，並在觀察病房逗留至同日下午6時45分。

According to section 9M(1) of the Ordinance, if a person who had been admitted to bail fails, without reasonable cause, to surrender to custody as shall have been appointed by a court, a court may order that the whole or part of the bail money be forfeited to the Government.
根據《該條例》第9M(1)條，一名獲准保釋的被告人如無合理因由而沒有按照法庭的指定歸押，法庭可以充公其全部或部分保釋金。

According to the Ordinance, a court does not necessarily have to forfeit the bail money of a defendant who fails to surrender to custody as shall have been appointed. The court has the discretion to decide whether or not to forfeit the bail money and the amount to be forfeited should a forfeiture order be made.
根據《該條例》，法庭不一定要充公一名沒有依時歸押的被告人的保釋金。法庭有酌情權決定是否下令充公保釋金及如要充公保釋金時，要充公多少。

During the trial, the appellant failed to produce a medical report and further claimed that the failure to obtain a medical report was because she had lost her identity card. This claim was not very credible. This court can understand why the trial judge did not accept her explanation but he should have given her the chance to prove her claim before deciding whether or not to forfeit her bail money.
原審時，上訴人未能出示醫療報告，並聲稱因為失去身份證故未能取得醫療報告的說法不太合信。主審法官不接納上訴人的解釋，本庭可以理解，但主審法官應該給予上訴人機會去證明她的說法才決定是否充公她的保釋金。

The undisputed evidence showed that the appellant did go to Kwong Wah Hospital to seek medical attention on 13 May 2015. In view of the congested situation of the A&E Unit and the symptoms the appellant claimed she had, it is highly likely that her claim that the doctor kept her in a ward for observation until the afternoon is true. If she was determined to abscond, she would not have surrendered herself to court on the following day. As a matter of fact, the new evidence the appellant submitted showed proved that she indeed had to stay in the Hospital for observation which made her unable to attend court in the morning of 13 May 2015 for the hearing.
無爭議的證據顯示，上訴人確有在2015年5月13日前往廣華醫院求診，而考慮到醫院急症室擠擁的情況及其聲稱的病徵，她被醫生要求留在病房觀察至下午的說法極可能是真的。如上訴人決意棄保潛逃，她理應不會在翌日便向法庭歸押。事實上，上訴人提出的新證據證明她確要留院接受觀察，令她不能在2015年5月13日早上出庭應訊。

We cannot overlook the fact that as far as the background of the appellant is concerned, $40,000 is a considerable amount of money, and the forfeiture of that sum of money may cause great hardship to both the appellant and her family.
本庭不能忽視以上訴人的背景而言，4萬元是一筆數目不少的款額，而充公該筆款額對上訴人及其家庭都可能會造成極大的困苦。

The court cannot forfeit a huge sum of a defendant’s bail money lightly. As far as the background of the present case is concerned, the trial judge should at least have checked the veracity of the appellant’s claim and given her the chance to prove if the explanation she gave on why she was unable to attend court at the time as had been appointed was true or not.
法庭不能輕率地充公一名被告人的巨額保釋金。以本案的背景而言，主審法官最少要就上訴人的說法查證及給予她機會證明她未能準時出庭的解釋是否屬實。

Even if it was revealed after checking that the explanation she gave was not true, in so far as the background of this case is concerned, the court did not necessarily have to forfeit the $40,000 bail money in full. In fact, the new evidence the appellant produced proved that her explanation was true. In our view, the confiscation order the trial judge made was inappropriate and without fair process. It should be set aside. Ms Catherine Ko, Acting Senior Assistant Director of Public Prosecutions, acting for the respondent, shared our view in this regard.
即使經查核後，確證上訴人的解釋並非真確，以本案的背景而言，法庭亦不一定需要充公上訴人全數保釋金4萬元。事實上，上訴人提供的新證據證明她的解釋是真確的。本庭認為原審法官作出的“充公令”是不恰當的，過程亦是不公平的，理應取消。對此，代表答辯人的署理高級助理刑事檢控專員高寶翠表示認同。

But the court must resolve the question of whether we have the jurisdiction to deal with appeals against confiscation orders first.
但法庭必先要解決的問題是本庭是否有司法管轄權處理針對“充公令”的上訴。

Mr Wong, counsel for the appellant, pointed out that there has been much dispute regarding whether the confiscation of bail money is a civil or criminal cause or matter. Mr Wong agreed that in R v Southampton Justices, Ex Parte Green [1976] Q.B. 11, when considering the question of whether the forfeiture of bail money was a “criminal cause or matter” within the meaning of the statutory provisions, the English Court of Appeal had reservation. It took the view that the nature of a recognizance was a bond, and failure to perform the bond would only lead to a civil debt. Therefore, the English Court of Appeal directed that from then on, all appeals regarding forfeiture of bail money should be heard by the Court of Appeal in the exercise of its civil jurisdiction. However, Mr Wong pointed out at the same time that the decision of Ex Parte Green (supra) had been challenged in a number of other cases.
代表上訴人的王大律師指出充公保釋金是屬於民事或刑事的性質或事宜有多番爭議。王大律師同意在R v Southampton Justices, Ex Parte Green [1976] Q.B. 11案，英國的上訴法庭在考慮充公保釋金是否屬條例所指的“criminal cause or matter”（刑事性質或事宜）時有所保留，並認為自簽保釋（recognizance）的性質屬法律協定（bond），而未能履行該協定只會導致民事債務（civil debt）。因此，英國上訴法庭指示日後有關充公保釋金上訴應該由上訴法庭行使民事司法管轄權審理。但王大律師同時指出上述Ex Parte Green案的判決在其他多宗案件遭受質疑。

Mr Wong submitted that the test of whether a matter was a criminal cause or matter should lie in the fact of whether the proceedings behind it were criminal or non-criminal. He pointed out that the Court of Appeal referred to Amand v Home Secretary and Minister of Defence of Royal Netherlands Government [1943] AC 147 in AG v Alick, Au Shui Yuen [1992] 1 HKLR 88 and held that if a person had the chance of being found guilty or sentenced in the end, it was clearly a criminal proceeding, even if the order being challenged was per se not clearly a criminal order. Mr Wong urged this court to accept that the confiscation order was ancillary to the appellant pleading guilty to the offence of burglary; therefore, the confiscation order was a criminal cause or matter.
王大律師認為測試某事項是否屬刑事性質或事宜，準則應是以背後程序究竟是刑事或非刑事。他指出上訴法庭在AG v Alick, Au Shui Yuen [1992] 1 HKLR 88案有援引Amand v Home Secretary and Minister of Defence of Royal Netherlands Government [1943] AC 147案，並裁定若然一名人士最後是有機會被判罪或判罰，這個程序明顯是刑事，即使受到質疑的命令本身並非明顯是刑事命令。王大律師力稱“充公令”附屬於上訴人承認的入屋犯法罪，因此“充公令”本身亦屬刑事性質或事宜。

Mr Wong stressed that a number of decided cases adopted the above criterion, and when dealing with the relevant question, the court should adopt an approach that is both flexible and reasonable.
王大律師強調有多宗案例採納上述測試準則，而處理有關議題時，法庭應採取彈性及俱常理的方法。

But Mr Wong at the same time accepted that even if confiscation of bail money was a criminal cause or matter, this did not mean that the Court of Appeal had jurisdiction over appeals against confiscation of bail money for the reason that the criminal jurisdiction of the Court of Appeal came from the High Court Ordinance, and the Court of Appeal had to deal with appeals from the Court of First Instance or the District Court according to Part IV of the Ordinance. Mr Wong submitted that according to the relevant Ordinance, the Court of Appeal had criminal jurisdiction to deal with appeals against confiscation of bail money.
但王大律師同時承認即使充公保釋金屬於刑事性質或事宜，這不代表上訴法庭就充公保釋金的上訴有司法管轄權，原因是上訴法庭的刑事司法管轄權源自《高等法院條例》，而上訴法庭要根據《該條例》第IV部處理源自原訟法庭或區域法院的上訴。王大律師認為根據有關條例，上訴法庭是有刑事司法管轄權處理針對充公保釋金的上訴。

He cited HKSAR v Chai Man Fong CACC 433/1997 to support his argument. In that case, the Court of Appeal held that the defendant had the right to appeal against a forfeiture order made pursuant to section 102 of the Ordinance although the property subject to the order had nothing to do with the conviction entered against the defendant. Mr Wong stressed that even if no one was found guilty of any offence, the court could still make a forfeiture order pursuant to section 102 of the Ordinance and the Court of Appeal also held that in the aforesaid situation, the Court of Appeal had jurisdiction to deal with appeals against forfeiture orders.
王大律師援引HKSAR v Chai Man Fong CACC 433/1997案支持他的立場。在該案，上訴法庭裁定被告人有權就《該條例》第102條作出的充公財產令上訴，雖然有關的財產和被告人被定的控罪無關。王大律師強調，即使無人被判任何控罪罪名成立，法庭仍然可以根據《該條例》第102條作出充公財產令，而上訴法庭亦裁定在上述情況下，上訴法庭有司法管轄權處理針對充公財產令的上訴。

Mr Wong submitted that the “sentence” referred to in section 80 of the Ordinance covered any order that a court made when dealing with an offender; therefore, a confiscation order is a form of “sentence”.
王大律師指出《該條例》第80條所指的刑罰，包括法庭處理罪犯時作出的任何命令，因此“充公令”是“刑罰”的一種。

He stressed that the present case did not involve bail money paid by a surety to guarantee that the defendant would attend court at the time as had been appointed. Rather, it was bail money the defendant paid. Mr Wong took the view that the two were different. That seeking to recover the former was a civil cause did not mean that the defendant’s application for the return of the bail money was also a civil cause.
王大律師強調本案並非涉及擔保人擔保被告人依時出庭所支付的擔保金，而是被告人支付的保釋金。王大律師認為兩者不同，而追討前者屬民事性質，不表示被告人要求取回保釋金的上訴亦屬民事性質。

Position of the respondent
答辯人的立場

Ms Ko acting for the respondent referred the court to several cases, including R v Eng Bouy CACC 438/1986, Ex Parte Green (supra), Wan Shui Ying & another v AG CACV 145/1989, to support her position that proceedings to confiscate bail money should be regarded as a civil and not a criminal cause or matter. She, however, at the same time accepted that it was not the case that she did not have reservation regarding the above position.
代表答辯人的高專員提出數宗案例，包括R v Eng Bouy CACC 438/1986、Ex Parte Green (supra)、Wan Shui Ying & another v AG CACV 145/1989等案支持她的立場，即充公保釋金程序應視為民事而非刑事性質或事宜。但高專員同時承認對上述立場並非沒有保留。

In any event, Ms Ko submitted that the Court of Appeal only had jurisdiction to deal with a “sentence” imposed on a defendant convicted of an offence. Ms Ko pointed out that since the confiscation order was made pursuant to section 9M of the Ordinance, it showed that the appellant’s failure to surrender to custody as have been appointed by the court bore no direct relationship with the offence of burglary that she later pleaded guilty to. Further, the confiscation order was not the sentence imposed on her for the burglary but the punishment she had to face for breaching the undertaking to show up for trial at the time as had been appointed. Ms Ko stressed that even if the charge of burglary the appellant was being prosecuted for was dropped at that time, the confiscation order was still valid. Therefore, the confiscation order could not be within the scope of the “sentence” referred to in section 80 of the Ordinance.
無論如何，高專員認為上訴法庭只有司法管轄權處理針對一名被定罪的被告人而作出的“刑罰”。高專員指出“充公令”是根據《該條例》第9M條作出，反映上訴人沒有按法庭的指定歸押，和她事後承認的入屋犯法罪沒有直接關係。“充公令”更並非是上訴人因入屋犯法罪而被判處的“刑罰”，而是上訴人違反承諾，沒有依期應審而要面對的懲罰。高專員強調即使上訴人當時被控的入屋犯法罪被撤銷，“充公令”仍屬有效，因此“充公令”不能納入《該條例》第80條所指的“刑罰”。

Ms Ko also pointed out that even though rejecting the application for costs made by a person acquitted of a charge was part and parcel of criminal proceedings and inseparable from the trial in question, the Court of Appeal still held in R v Wong Hing Yuk [1989] 1 HKLR 251 that the Court of Appeal did not have the jurisdiction to deal with an appeal against a costs order for the reason that the said costs order was not made on the basis of a conviction entered against the defendant. Ms Ko pointed out that the aforesaid point of view was approved in R v Hayden [1975] 2 All ER 558.
高專員亦指出即使否決一名被判無罪的人提出的訟費申請屬刑事程序不可或缺的一部份，亦是和有關審訊密不可分，上訴法庭在R v Wong Hing Yuk [1989] 1 HKLR 251案仍裁定上訴法庭沒有司法管轄權處理針對訟費判令的上訴，原因是該訟費判令並非建基在上訴人有被定罪。高專員指出上述觀點在R v Hayden [1975] 2 ALL ER 558案獲認同。

Ms Ko agreed that the confiscation order was not reasonable and should not have been made. If the appellant could follow the proper procedure to apply for the return of the $40,000 bail money, the respondent (that is, the prosecution) not only would not oppose, it would even try its best to cooperate.
高專員同意“充公令”不合理亦不應作出，而如上訴人能循恰當程序要求取回4萬元保釋金，答辯人（即控方）不但不會反對，更會盡量配合。

Discussion
討論

The Court of Appeal made clear in Eng Bouy and Wan Shui Ying & another (supra) that decisions to confiscate the bail money of a surety was a civil matter and matters relating to confiscating the bail money of a surety should be proceeded with in the form of civil proceedings. However, none of the appellants in those cases were defendants in criminal cases.  Those appellants only paid the bail money in the capacity of a surety to guarantee that the defendants in the criminal cases in question would attend court for their trials at the time as had been appointed. In the end, the defendants absconded and the bail money the sureties had paid was confiscated as a result.
在上述Eng Bouy和Wan Shui Ying & another案，上訴法庭表明充公擔保人保釋金的裁決，屬民事訴訟事宜，而和充公擔保人保釋金有關的事項應以民事訴訟方式進行。但上述案件的上訴人都不是刑事案件的被告人。該些上訴人只是以擔保人的身份支付保釋金，擔保有關刑事案件的被告人會依時出庭應審。結果，因為被告人棄保潛逃，導致擔保人支付的保釋金被充公。

When a surety pays bail money to guarantee that a defendant will attend court for his trial, the surety does so to the court in the form of a bond. If the defendant fails to attend court for trial, it means that the surety has not performed the undertaking in the bond. In such a situation, it is not difficult to understand why the court held that the proceedings to confiscate the bail money the surety had paid were a civil cause or matter.
當一名擔保人為擔保被告人出庭應審，而支付保釋金，擔保人是向法庭以法律協定(bond)形式擔保被告人會出庭應審。如被告人沒有出庭應審，則表示擔保人沒有履行其法律協定的承諾。在上述情況，裁定充公擔保人保釋金的程序屬民事性質或事宜不難理解。

However, the proceedings involved in the present case are the District Judge making an order to confiscate the bail money that the defendant had paid as she failed to turn up for her trial at the time that had been appointed. The confiscation order was part and parcel of the criminal prosecution made against the appellant and inseparable from the offence she was charged with. In our view, the confiscation order should be a criminal cause or matter.
但本案涉及的程序是區域法院法官以被告人沒有依時應審而充公她支付的保釋金。“充公令”是上訴人被刑事檢控不可或缺的一部份，亦是和上訴人被控罪行密不可分。因此本庭認為“充公令”應屬刑事性質或事宜。

However, in our view, whether or not a confiscation order is a criminal or civil cause or matter has nothing to do with the question that arises in this appeal for the reason that this question only bears on the judgments or orders of the Court of First Instance (see section 13(3)(aa) of the High Court Ordinance). But this appeal was not from the Court of First Instance; it was from the District Court.
但本庭認為“充公令”是否屬刑事或民事性質或事宜和本上訴引發的議題無關，原因是該議題只影響一些源自原訟法庭的判決或命令（見《高等法院條例》第13(3)(aa)條），但本上訴並非源自原訟法庭，而是源自區域法院。

The Court of Appeal is established by statute and does not possess any inherent power. The jurisdiction of the Court of Appeal must come from the relevant statutory provisions which include the High Court Ordinance and/or the Ordinance. Section 13(3) of the High Court Ordinance provides:
上訴法庭是法定權力機構，不具任何固有權力。上訴法庭的管轄權力必須建基在有關條例，而有關條例包括《高等法院條例》及/或《該條例》。《高等法院條例》第13(3)條列出：

The criminal jurisdiction of the Court of Appeal shall consist of-
“上訴法庭的刑事司法管轄權由以下各方面組成─

(a)appeals from the Court of First Instance or District Court under Part IV of the Criminal Procedure Ordinance (Cap 221);
(a)根據《刑事訴訟程序條例》(第221章)第IV部來自原訟法庭或區域法院的上訴；

(aa)appeals from a judgment or order of the Court of First Instance given or made in the exercise of the powers conferred on it under section 21I(1) and relating to a criminal cause or matter;
(aa)來自原訟法庭在行使根據第21I(1)條賦予原訟法庭的權力時作出的關於刑事訟案或事宜的判決或命令的上訴；

(b)the consideration of questions of law reserved under section 81(1) of the Criminal Procedure Ordinance (Cap 221);
(b)對根據《刑事訴訟程序條例》(第221章)第81(1)條保留以待上訴法庭考慮的法律問題的考慮；

(c)the consideration of-
(c)對以下各項的考慮─

applications by the Secretary for Justice for the review of any sentence under section 81A(1) of the Criminal Procedure Ordinance (Cap 221);
(i)律政司司長根據《刑事訴訟程序條例》(第221章)第81A(1)條提出的對任何判刑的覆核申請；

references by the Secretary for Justice of questions of law under section 81D of the Criminal Procedure Ordinance (Cap 221);
(ii)律政司司長根據《刑事訴訟程序條例》(第221章)第81D條轉交的法律問題；

(d)appeals by way of case stated from the District Court under section 84 of the District Court Ordinance (Cap 336); and
(d)根據《區域法院條例》(第336章)第84條來自區域法院的以案件呈述方式提出的上訴；及

(e)any other jurisdiction conferred on it by any law.
(e)任何其他由法律賦予上訴法庭的司法管轄權。”

Part IV of the Ordinance covers provisions that deal with appeals, questions of law reserved and referred and review. Section 83G provides:
《該條例》第IV部涵蓋和上訴、保留和轉交的法律問題和覆核有關的條例。第83G條列明：

“A person who has been convicted of an offence on indictment may appeal to the Court of Appeal against any sentence (not being a sentence fixed by law) passed on him for the offence, whether passed on his conviction or in subsequent proceedings.”
“任何人如循公訴程序就某罪行被定罪，可針對他就該罪行而被判處的任何刑罰(並非法律所固定的刑罰)向上訴法庭提出上訴，不論該刑罰是他被定罪時所判處或是在繼後的法律程序中所判處的。”

And section 80 of the Ordinance defines “sentence” as “any order made by a court when dealing with an offender”.
第80條將“刑罰”釋義為“法庭處置罪犯時作出的任何命令”。

The confiscation order was made because the appellant failed to attend court for trial at the time as had been appointed. This bore no direct relationship with the burglary offence that she was charged with and was not a sentence imposed on the appellant for that offence. Nor was it an order the court made when dealing with her for the burglary that she had committed.
“充公令”是因為上訴人沒有依時出庭應審而作出，和她被控的入屋犯法罪無直接關係，並非上訴人就該罪行而被判處的刑罰，亦非法庭因上訴人是犯了入屋犯法罪處置她時作出的命令。

The confiscation order fails to meet the stipulations in respect of an appeal against sentence referred to in section 83C of the Ordinance.
“充公令”不符合《該條例》第83G條所指針對“刑罰”的上訴。

Section 83I(3) of the Ordinance provides:
《該條例》第83I(3)條列出：

“On an appeal against sentence the Court of Appeal, if it considers that the appellant should be sentenced differently for an offence for which he was dealt with by the court below, may-
“在針對刑罰的上訴中，上訴法庭如認為應對下級法庭就某罪行所處置的上訴人，就該罪行判處不同的刑罰，則可—

(a)quash any sentence or order which is the subject of the appeal; and
撤銷是上訴標的之任何刑罰或命令；及

(b)in place of it pass such sentence… as it thinks appropriate for the case…”
改為判處上訴法庭認為適合該案件的刑罰…。”

We have considered the question of whether the confiscation order was a sentence imposed on the appellant for “an offence for which (s)he was dealt with by the court” as required by section 83I(3) of the Ordinance. In considering the question, we bear in mind that a person already commits a criminal offence if he fails to surrender to custody as shall have been appointed by a court. Section 9L of the Ordinance provides:
本庭曾考慮“充公令”是否符合《該條例》第83I(3)條所指的“法庭就某罪行所處置的上訴人”。在考慮該議題時，本庭緊記“沒有按照法庭的指定歸押本身已是一項刑事罪行”。《該條例》第9L列明：

“(1)A person admitted to bail who, without reasonable cause, fails to surrender to custody as shall have been appointed by a court, commits an offence.
“(1)獲准保釋的人如無合理因由而沒有按照法庭的指定歸押，即屬犯罪。

(2)A person admitted to bail who, having reasonable cause therefor, has failed to surrender to custody at such time as shall have been appointed by a court, fails to so surrender as soon after that time as is reasonably practicable, commits an offence.”
(2)獲准保釋的人如有合理因由而沒有按法庭的指定時間歸押，但沒有在該時間後在合理可行的範圍內盡快歸押，即屬犯罪。”

We cannot overlook the fact that section 83I of the Ordinance is only “supplemental provisions as to appeal against sentence” appended to section 83G of the Ordinance. “An offence” referred to in section 83I(3) of the Ordinance does not refer generally to any offence but the offence for which the defendant had been convicted for as referred to in section 83G of the Ordinance.
但本庭不能忽視《該條例》第83I條只是“關於針對刑罰的上訴的補充條文”，附帶於《該條例》第83G條。《該條例》第83I(3)條所指的“某罪行”並非泛指任何罪行，而是《該條例》第83G條所指被告人循公訴程序被定罪的罪行。

We have also carefully analyzed the case of Chai Man Fong that Mr Wong had submitted. In that case, the court only ordered that the properties found on the person of the appellant be confiscated after he had pleaded guilty to a number of offences. The said confiscation order was one of the orders the court made when dealing with him after he had been convicted of the offences and therefore met the requirement of sections 80 and 83G of the Ordinance.
本庭亦有小心分析王大律師援引的Chai Man Fong案，該案的上訴人是承認了多項控罪後才被法庭下令他被捕後在他身上搜獲的財物要被充公。有關充公令是該名上訴人就罪行被定罪後，法庭在處置他時作出的命令之一，故符合《該條例》第80條和83G條的規定。

Mr Wong stressed that the orders that section 102 of the Ordinance covered included those that were made in the absence of any defendant being convicted of any offence. The observation of Mr Wong is correct. But in the aforesaid scenario, neither is the confiscation order in question a “sentence” referred to in section 80 of the Ordinance nor can anyone aggrieved by the said confiscation order appeal against the said confiscation order pursuant to section 83G of the Ordinance unless the appeal satisfies the requirements set out in section 13(3)(aa) of the High Court Ordinance.
王大律師強調《該條例》第102條涵蓋的命令是可以在沒有任何被告人被定罪的情況下作出。王大律師的觀察是正確的，但假若上述情況出現，則有關的充公令並非《該條例》第80條所指的“刑罰”，而對該充公令不滿的人仕亦不能根據《該條例》第83G條針對該充公令提出上訴，除非該上訴符合《高等法院條例》第13(3)(aa)條的規定。

We find that Chan Man Fong does not support the appellant’s arguments.
本庭認為Chai Man Fong案並不支持上訴人的論據。

As a matter of fact, the question involved in the present appeal had been before the English Court of Appeal in R v Thayne [1970] 1 Q.B. 141. The appellant, charged with theft of a postal parcel, was released on bail on his own recognizance for £25. He failed to surrender to custody according to the bail conditions and was arrested. Upon being found guilty of the offence of theft, the judge sentenced him to 18 months of imprisonment and ordered that the £25 for which he entered into bail on his own recognizance be confiscated. He was to serve a consecutive term of 6 months’ imprisonment should he fail to pay the £25. After studying section 9 of the Criminal Appeal Act 1968, the English Court of Appeal held that it was bound by the provision when dealing with appeals against sentence. In other words, the Court could only deal with the sentence that was passed for the offence that the appellant was indicted for and convicted of. Since the order the judge made against the appellant for failing to surrender to custody according to the bail conditions was not a “sentence”, the Court of Appeal did not have jurisdiction to deal with the appeal against the said order. Lord Parker C.J. made the following comments in page 142 of the judgment:
事實上，本上訴所涉及的議題曾受英國上訴法庭在R v Thayne [1970] 1 Q.B. 141案審議。該案的上訴人被控盜竊郵包罪，並獲准自簽25英鎊保釋。他沒有按保釋條件歸押而被拘捕。他被裁定盜竊罪罪名成立後，被法官判刑18個月。法官同時充公該名上訴人自簽保釋金25英鎊，而如沒有支付該25英鎊，他要多服分期執行的6個月刑期。英國上訴法庭在審議過Criminal Appeal Act 1968第9條後，裁定上訴法庭在處理針對判刑的上訴時，其管轄權受制於該條文，即只能處理上訴人循公訴程序就某罪行被定罪後被判處的刑罰。由於法官因該名上訴人沒有按保釋條件歸押而作出的命令並非“刑罰”，上訴法庭不具司法管轄權處理針對該命令的上訴。Lord Parker C.J.在判案書第142頁有以下評論：

“The order for six months’ imprisonment consecutive which was only in connection with the failure to surrender to bail, was not passed on him for any offence whatever.  It is true that section 50(1) gives a very wide definition of sentence; it provides: ‘In this Act, “sentence”, in relation to an offence, includes any order made by a court when dealing with an offender…’  But wide as those words may be, once they are written into section 9 in place of the word ‘sentence’, the fact remains that the limiting words remain, namely, that the sentence must be passed or his for the offence.  In those circumstances, odd as it may seem, this court has no jurisdiction whatever to interfere with that part of the recorder’s order.”
“6個月分期執行的監禁命令只是和沒有按保釋條件歸押有關，而並非就某罪行判處他的刑罰。無可否認，第50(1)條文施予‘刑罰’的釋義甚廣；它規定：‘“刑罰”，就罪行而言，包括法庭處置罪犯時作出的任何命令…’，但不論該些用詞如何廣泛，只要將該些用詞套用在第9條文內的‘刑罰’，具約束性的用詞仍然有效，即‘刑罰’必須是因某罪行被定罪而判處的‘刑罰’。在該情況下，雖然看來有些奇怪，上訴法庭不具司法管轄權干預法官所作的有關命令。”

We should mention in passing that sections 9 and 50 of the English Criminal Appeal Act 1968 are basically the same as sections 83G and 80 of the Ordinance. Section 83I(3) of the Ordinance is also the same as section 11(3) of the English Criminal Appeal Act 1968.
應順帶一提的是，英國Criminal Appeal Act 1968第9條和第50條和《該條例》第83G條和第80條基本一樣。《該條例》第83I(3)條亦是和英國Criminal Appeal Act 1968第11(3)條相同。

We concur with the decision in Thayne (supra). We do not have jurisdiction to deal with the appellant’s appeal to overturn the confiscation order. We therefore also have to dismiss her appeal against the confiscation order.
本庭認同上述Thayne案的判決。本庭不具司法管轄權處理上訴人要求推翻“充公令”的上訴。因此本庭亦要駁回上訴人針對“充公令”的上訴。

Postscript
後記

The circumstances of the present case are unusual. Both parties agreed that the trial judge was wrong to make the confiscation order and also that the process of making it was unfair. Acting for the respondent (the prosecution), Ms Ko even stated expressly that not only would the prosecution not oppose the application as long as the appellant followed the appropriate procedure to apply for setting aside of the confiscation order, it would even cooperate actively with her in the application.
本案情況特殊，雙方的共識是主審法官作出的“充公令”是錯誤的，作出“充公令”的過程亦不是公平的。代表答辯人（控方）的高專員更明確地表示，只要上訴人循適當程序申請撤銷“充公令”，控方不會反對，更會積極配合她的申請。

The opinions we express are of course not binding on the appellant, but we take the view that she can apply for judicial review to overturn the confiscation order. There are numerous grounds that can support an application for judicial review to correct the decisions made by magistrates or District Judges. They include:
當然本庭的意見對上訴人不具約束力，但本庭認為她是可以利用司法覆核申請，要求推翻“充公令”。有眾多理由能支持司法覆核申請，要求改正裁判法院法官或區域法院法官的判決，該些理由包括：

(1)an error of jurisdiction;
(1)an error of jurisdiction (司法管轄權的差錯)；

(2)a failure to observe judicial fairness, such as bias;
(2)a failure to observe judicial fairness, such as bias (沒有遵守司法公正，例如有偏見)；

(3)an error of law on the face of the record;
(3)an error of law on the face of the record (記錄上顯示有法律原則出錯)；

(4)illegality;
(4)illegality (沒有法律根據)；

(5)irrationality; and
(5)irrationality (不合情理的)；及

(6)procedural impropriety.
(6)procedural impropriety (程序不當)。

(see Archbold Hong Kong 2016 Edition p 679, para. 7-58).
(見Archbold Hong Kong 2016 Edition P679, para. 7-58)。

We are of the view that the appellant can base her application on some of the aforesaid grounds to apply for judicial review, asking the court to overturn the confiscation order in order to get back the $40,000 bail money that had been confiscated.
本庭認為上訴人可根據部分上述理由透過司法覆核申請，要求法庭推翻“充公令”以取回被充公的4萬元保釋金。

Wong Hay Yiu, instructed by Tang, Wong & Chow, assigned by the Director of Legal Aid, for the Appellant (appeal against confiscation order).
答辯人：由律政司署理高級助理刑事檢控專員高寶翠代表。

The Appellant, in person, present (application for treating the notice of abandonment as a nullity)
上訴人（充公令上訴）：由法律援助署委派鄧王周廖成利律師行轉聘大律師王熙曜代表。

Catherine Ko, Acting Senior Assistant Director of Public Prosecutions of the Department of Justice, for the Respondent
上訴人（申請把放棄上訴通知書當作無效）：沒有律師代表，親自應訊。