刑事檢控科各律師/高級律 - Department of Justice

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When the magistrate asked defence counsel if he had any
instructions as to whether a fine could be paid from the bail
money, he replied that the Appellant could not pay the fine from
the bail money as it had been borrowed from a relative and the
Appellant wanted the bail money returned to his younger brother.
The magistrate, however, was not prepared to accept that
information, so the Appellant gave evidence. He said that he had
obtained $25,000 from his younger brother to meet the bail. The
arrangement was that he would repay the money to his brother
once the case was finished. The younger brother also testified,
and he confirmed that he had borrowed $25,000 from a friend in
order to provide the Appellant with the bail money he required.
He told the magistrate he had not told his friend why he wanted
the money, but just that it was needed urgently and he would
return the money within several days.
The magistrate did not accept that the money was borrowed
on a promise that it would be repaid. He also did not believe
either the Appellant or his brother and opined that anyone who
was willing to put up $25,000 would certainly want to know what
was being done with the money, particularly if the person
borrowing the money had no great means himself. He was
satisfied that the money was given to the Appellant for his bail
without any strings attached. On that basis, he was satisfied
beyond reasonable doubt that the bail money was available to the
Appellant to dispose of as he wished. The magistrate then told the
Appellant:
You are now sentenced to 10 months’ imprisonment
and a fine of $20,000. The fine is payable forthwith if
you do not pay that forthwith, you will serve an
additional 3 months’ imprisonment - 3 months
consecutive to the 10 months.
The Appellant told the magistrate he would not pay the fine
from the bail money, but would give it to his younger brother. The
3 months’ sentence in default of payment was activated. The
magistrate also activated the suspended sentence, but keeping
totality in mind made 2 months’ of that 6 months’ sentence
concurrent with the present sentence, making 17 months in total.
On appeal, complaint was made of the fine and of the
imprisonment in default of payment. It was submitted, first, that
the magistrate erred in imposing a default order of 3 months’
imprisonment for non-payment of the fine of $20,000, as the
magistrate’s enquiry as to the means of the Appellant to pay a fine
was not supported by evidence adduced in the enquiry. Further,
there was no evidence adduced in the enquiry by the prosecution
to prove the means of the Appellant, or to contradict evidence