THE QUEEN v. SHU JAAN CHANG

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HEADNOTE

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                    Appeal against conviction before sentence - it is the normal and firmly established practice that an appeal will only be heard after conviction and sentence. An appeal against conviction before sentence may be heard in rare and exceptional circumstances.

                    Absence of appellant during appeal - whether an appellant has to be present at the hearing of his appeal is a matter of discretion depending upon the circumstances in each case.

                    An appeal against conviction before sentence brought by a defendant who deliberately and voluntarily absconded during trial and was absent during the appeal amounts to an abuse of process and will be struck out.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 1106 of 1985

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BETWEEN

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RULING

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1. In July, 1984 a total of 16 summonses were taken out against Shu Jaan-chang and I shall refer to him as the appellant for the sake of convenience. The summonses alleged him of possession of large quantities of pills which contained Part I poisons in contravention of the Pharmacy and Poisons Ordinance, Cap. 138.

2. The appellant first appeared before a magistrate on 28th August, 1984 when bail was fixed at $100,000 and this was increased to $150,000 in a subsequent appearance. After several adjournments at the request of the defence, the trial commenced on 30th April, 1985 before Mr. Polson and the hearing continued until 28th May when the magistrate reserved his judgment to 10th June. On that day, Mr. Nguyen, who had been appearing with Mr. Rodway Q.C. for the appellant told the magistrate and I quote:-

"Defendant is absent to-day. After the last hearing defendant went to Taiwan. On 7/6/85 defendant went to Japan. Should have returned yesterday. He felt chest pain and was taken to hospital in Japan. He has "angina pectoris". (Mr. Nguyen handed up what was purported to be a medical certificate written in Japanese.) He will be in Osaka for 2 weeks. He is forbidden to travel by plane. This may cause difficulties but cannot be avoided. Ask for adjournment. Date to be left open."

3. Despite the absence of the appellant and the application for adjournment, the magistrate proceeded to deliver his judgment finding the appellant guilty of 15 summonses out of 16. Sentence ores deferred to 16th July and bail was extended.

4. On 16th July, Mr. Nguyen had this to say to the magistrate:-

"Defendant previously ill in Japan. Defendant continued treatment. On 21/6/85 defendant came to Hong Kong on business matter. This was for Sinor Grace Go. Ltd. acting on contract for Hong Kong Government. An injunction issued against his company by S/Court. 3/7/85 defendant back to Japan still in hospital in Osaka. (Counsel produced a telex and something in Japanese purported to be another medical certificate.)

 Mr. Nguyen then asked the magistrate not to issue a warrant of arrest of his client and applied for an adjournment for two months. This application was vigorously opposed by Counsel far the Crown. It was disclosed that the appellant had a similar previous conviction for which he was given a suspended sentence. The magistrate ordered a warrant of arrest to issue at the end.

5. On 22nd August, the magistrate granted an application to file notices of appeal out of time and at the same time ordered the warrant of arrest to be withdrawn until further order. In pursuance to that order, 15 notices of appeal, which were in identical terms, were filed on 28th August by Messrs. So and Karbhari, Solicitors. The ground of appeal in each and every notice is as follows:-

"And that the general grounds of such appeal are that the conviction was against the weight of evidence upon the hearing of the proceedings in that behalf, and that certain evidence was improperly admitted or rejected upon the hearing of the proceedings in that behalf, and that there was no evidence, or no sufficient evidence whereon to found the said conviction."

6. The hearing of the notices first came before Addison J. on 11th March, this year when he raised the question whether the appeal is incompetent and an abuse of the process. He invited argument from counsel on this as a preliminary point and adjourned the hearing to a date to be fixed. The matter was subsequently listed before me by the Registrar. During the hearing, the appellant was still represented by Mr. Rodway, leading counsel and Mr Nguyen but there was no sight of him. The reason given for his absence has always been that the appellant became ill when he was abroad and has not been able to travel. Mr. Rodway handed to me what was purported to be an up-to-date medical certificate which was signed by one Vincent Chiu and dated 6th March, this year with an address in California, U.S.A. suggesting that the appellant was in the United States at that time. Mr. Rodway however told me at a later stage that the appellant is at present in Taiwan. The claim that the appellant has not been able to travel due to serious illness and hospitalisation is not consistent with what actually transpired. On the contrary, it is very plain that from the day of his disappearance just before judgment he has been travelling to many places around the world. In fact, he returned to Hong Kong shortly after judgment and left again before sentence. His absence can only be explained as a deliberate and voluntary absconding to avoid consequences which convictions would inevitably bring about.

7. It is agreed that at this stage I should only deal with the issue raised by Addison J. without going into the merit of the appeal itself. Mr. Halley for the Crown argued that the appeal is incompetent and an abuse while Mr. Rodway contended to the contrary. There are two main questions to be considered namely:-

8. In Reg. v. Yuen Chun-sing (1976) H.K.L.R. 767, it was held that it was technically feasible to appeal against conviction before sentence. At page 770, Cons J. (as he then was) said:-

"In that sense, by granting bail, this court would be interfering at an interlocutory stage in magisterial business, an interference not usually countenanced: Whitney Gill Newton v. Ernest Edward Walker (1975) H.K.L.R. 317. On the other hand it is now firmly established that an appeal against sentence is a matter separate and distinct from an appeal against conviction: Reg. v. Tam Kun-shing (1975) H.K.L.R. 128. It must therefore be technically feasible to pursue an appeal against conviction before sentence is passed. This is not a course to be generally encouraged, but after much hesitation I have come to the conclusion that in the particular and peculiar circumstances of this case the interests of justice would best be served by granting bail to the hearing of the appeal."

9. The decision in Reg. v. Tam Kun-shing referred to in the judgment deals with the point where a notice of an appeal against conviction by a magistrate is given under section 113 of the Magistrates Ordinance this notice does not authorize the court to hear an appeal against the sentence imposed on the appellant if no notice of appeal against sentence has been given within the prescribed time. Cons J. was dealing with an application for bail pending an interlocutory appeal and he made it perfectly clear that he came to his conclusion after much hesitation and in the particular and peculiar circumstances of that case. In neither Yuen Chun-sing nor Tam Kun-shing, the question of the deliberate and voluntary absconding of the appellant arose. There is, therefore, no justification to depart from the normal and firmly established practice that an appeal will only be heard after conviction and sentence.

10. The decision in Robert Edward Wynyard Jones (No. 2) reported in (1972) 56 Cr. App. R.413 has been relied on very heavily by Mr. Halley. The facts in that case were that in July, 1970 the applicant, Jones absconded during his trial and the judge continued with the trial in his absence. He was convicted and sentenced. In September, 1970, his solicitors filed notice for leave to appeal on his behalf. In March, 1971 the Court of Appeal refused the application on the ground that the notice had been filed without, authority. In May, 1971 Jones was brought back to England from Denmark on an extradition order. His solicitors filed further notice asking for an extension of time for  leave to appeal on the ground that before he absconded Jones had been subjected to threats but no particulars were given. The application was refused.

11. Jones dealt with an application for extension of time to appeal but it did as it does in the instant appeal involve a defendant who deliberately and voluntarily absconded himself during the trial and the principles are equally applicable. The fact that the appellant has filed notices of appeal makes no difference

12. Turning to the question whether the appellant has to be present during the appeal, it was held by the Court of Appeal in England in Reg. v. Flower (1966) 50 Cr. App. R. 22 that where an applicant has escaped from prison and so is not present when his appeal is called on, the practice of the court is either to adjourn the appeal or dismiss it according to the justice of the case. The appeal of the absent appellant, Eric Flower, was nevertheless dealt with because all the points which he sought to raise had been thoroughly canvassed by counsel acting on behalf of two other appellants. It is to be observed that Eric Flower was not represented by counsel in the appeal.

13. Rule 49 of the Criminal Appeal Rules provides:-

14. In my view, these provisions also apply to an appeal from a magistrate before a single judge. On the authorities, I am satisfied that whether an appellant has to be present at the hearing of his appeal is a matter of discretion depending upon the circumstances in each case. I am not persuaded that this is a case for the discretion to be exercised in favour of the appellant. There is no injustice to him. All he has to do is to return to the jurisdiction to be sentenced before proceeding with his appeal.

15. In conclusion, I would respectfully echo what Roskill L.J. said in the last taro paragraphs of his judgment in Jones:-

"As Lawson J. pointed out during Mr. Lloyd Eley's argument, the applicant is really saying: "give me a ten-month extension of time, although I absconded deliberately and absented myself and made myself not available to give evidence or enable my witnesses to be called, and also notwithstanding the fact that I deliberately refused to come back and make this application earlier, but put the authorities to the trouble and expense of bringing me back in custody by extradition proceedings in Denmark." To grant this application at this stage would, in the view of this Court, be to put a premium on prisoners jumping bail; it may even have the effect of encouraging others to do so. It might also have as a side effect, increasing the reluctance of a court in a very long trial to grant bail lest the applicant's conduct be repeated by others. To put a premium on jumping bail is something which this Court is not for one moment prepared to countenance. This application is entirely without merit, notwithstanding the skill with which it has been advanced. There is no ground whatever for granting this extension of time. The applicant has brought this entirely on his own head, and he must now take the consequences. The application therefore is refused."

16. We find ourselves in a very much similar situation. Ever since his absconding, it is quite obvious that the appellant has been conducting the proceedings through his legal advisers by remote control. What he is saying here is tantamount to this: "You hear the appeal in my absence now and if it is successful I will come back to Hong Kong but if not you have to guess what I shall do." The conduct of the appellant is so appalling and outrageous that it really verges on contempt. It is the most blatant abuse of the judicial process that can ever possibly be imagined, something which this Court strongly condemns. Consequently the appeal will not be heard and is to be struck out. I so order.