HKSAR v. MA CHUN CHING

[English Translation – 英譯本]

HCCC 77/2019

[2020] HKCFI 3007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 77 OF 2019

_______________________

_______________________

_______________________

REASONS FOR ORDERS

_______________________

1.  For the hearings of this case to proceed, I have ordered the following measures to be taken:

(1) when the accused refused to appear in court to attend the hearing after being escorted to the court building by the CSD officers, an order was made to allow the CSD officers to enforce the accused's attendance at the hearing by bringing him into the courtroom[1];

(2) short hearings were conducted on 27 October, the morning of 2 November, the morning of 3 November and the morning of 6 November, in the accused's absence[2];

(3) a 10-day trial from 9 November 2020[3] to its conclusion[4] was conducted in the accused's absence.

2.  Now I shall give a full account of the matter and give reasons for the above measures.

A full account of the matter

3.  The accused was unrepresented all along. During the numerous pre-trial reviews and on the first day of the trial, I did inform the accused of his right to legal representation. Every time he expressed that he would be defending without a lawyer. He even refused the Court's suggestion of arranging a Legal Aid lawyer to have a meeting with him.

17-22 October 2020

4.  The Court conducted a voir dire in relation to whether the admissions made by the accused as alleged by the prosecution were admissible. The prosecution called their witnesses, and the accused also managed to finish his testimony.

23 October 2020

(1) not long after the trial had started, the accused expressed dissatisfaction with the way I handled the case and started to become rowdy. The Court had to stand down the proceedings to let him calm down;

(2) later on the accused applied for a change of trial judge[5] on account of my being biased. After considering his submissions, I rejected the application. After that the accused kept shouting and spoke to the defence witness (the accused's elder sister, hereinafter known as the 'Denfence Witness') who had begun testifying, telling her that she did not need to testify further. The Court adjourned the hearing to 2:30 p.m. to let the accused calm down;

(3) the Court resumed at 2:30 p.m. The accused kept speaking in a loud voice, saying that he would not continue the hearing with me presiding, and that he would lodge a complaint. I informed him that he had the right to complain. He expressed that he would not let me preside over the case and kept speaking in a loud voice. The case was adjourned to 27 October, i.e., the next working day.

27 October 2020

5.  When the morning session began, CSD officers[6] informed the Court that the accused was in the cell of the court building and in a very emotional state, and therefore he could not be arranged to attend the hearing in the courtroom.

6.  After hearing submissions from counsel for the prosecution, it was ordered that:

(1) the hearing be adjourned. If the accused calmed down, court would resume immediately if circumstances so allowed;

(2) the Court to liaise with the Probation Office[7] to arrange counselors to pacify the accused;

(3) staff from the Legal Aid Department be arranged to meet the accused to explore the possibility of providing him with legal aid.

7.  At the afternoon session, CSD officers[8] informed the Court that the accused still refused to appear in the courtroom to attend the hearing.

8.  Staff from the Legal Aid Department[9] attended court and informed the Court that legal staff from the Department had met the accused and informed him of his rights. However, the accused refused to let the Legal Aid Department arrange a legal representative for him, and a document was signed in acknowledgement[10]. The Legal Aid staff already informed the accused that if he would like to apply for legal aid later on, he could do so anytime.

9.  The Court also received a written report from the Probation Office[11], pointing out that the accused did not need counselling services.

10.  The Court adjourned the hearing to the following day, and issued a letter[12] to the accused notifying him of the arrangement. It was also pointed out to him that if he was still disinclined to appear in court to attend the hearing, the Court would be entitled to regard him as having waived his right to attend the hearing. He was also informed of the possible consequences of disrupting the hearing. The direction to inform the Defence Witness of the adjournment by phone[13], and that she was required to continue testifying in court was also given.

11.  On that day, court staff also received from the accused a complaint letter, which was then relayed to the Chief Judge of the High Court for handling.

28 October 2020

12.  When the morning session began, CSD officers[14] informed the Court that the accused suddenly laid on the floor when being brought into the cell in the court building, claiming that he was feeling unwell and refused to appear in court. The Court adjourned the hearing to 2:30 p.m., and directed that if the CSD staff came to the decision that the accused should be taken to a doctor, it should be done. Whether the hearing on that day should continue would have to depend on the doctor's judgment and recommendation.

13.  In the afternoon session, CSD officers[15] informed the Court that the accused still expressed disinclination to attend court, and repeated his grievances against the Court. As the accused kept expressing that he was feeling unwell, he was arranged to receive treatment by a doctor at Stanley Prison. Later on it was learnt that the accused was sent to Siu Lam Psychiatric Centre for observation and treatment.

14.  The hearing was adjourned to the following day.

15.  Moreover, when court staff contacted the Defence Witness who informed the staff member that she was feeling unwell and would not be attending court that very day. The staff member informed her of the arrangements for the adjournment, and advised her to attend court as scheduled.

29 October 2020

16.  When the Court convened in the morning, CSD officers[16] informed the Court that the accused informed the staff at Siu Lam Psychiatric Treatment Centre he was feeling unwell that morning, such as headache and chest pain. The staff had already arranged for him to receive treatment at the hospital, therefore he was unable to attend court.

17.  The Court adjourned the hearing to the following day.

18.  The Court also informed the Defence Witness, who had arrived, of the arrangements for the adjournment, and she was advised to attend court on time to continue with her testimony.

30 October 2020

19.  The Court received a document from the Hospital Authority[17], from which it was learnt that the accused was feeling unwell and was unable to attend court for the hearing. The Court adjourned the hearing to 2 November 2020, i.e., the next working day.

20.  The Court also informed the Defence Witness, who had arrived, of the arrangements for the adjournment, and she was advised to attend court on time to continue with her testimony.

21.  The Court also wrote to the attending doctor and the Hospital Chief Executive, requesting a more detailed report on the accused's health condition.

22.  The doctor's report[18] says that the body check performed on the accused did not reveal any significant health condition. His major functions were normal, except that he would take palliative medication when necessary, while prescription for regular medication was unnecessary. The doctor pointed out that the accused was in a stable condition and mood. Although the examination report on the accused's complaint of chest pain was not yet ready, and the psychiatric assessment report was also pending, the doctor was of the opinion that there was nothing wrong with the accused's physical condition, and that he could attend court on 2 November.

23.  I accept that the accused was unable to attend court on those 3 days[19] because his health condition was not good, and will not consider him absent without leave or reason.

2 November 2020

24.  During the morning session, CSD officers[20] informed the Court that the accused had been reluctant to leave Siu Lam Psychiatric Treatment Centre. Later when he was brought to the High Court Building, he was also reluctant to come into the courtroom and kept being raucous. After considering submissions from the prosecution, it was ordered that the CSD officers be allowed to bring the accused into the courtroom using the minimum of reasonably required force under the circumstances, but depending on whether circumstances would allow, the accused did not have to be necessarily brought into the courtroom. This was done out of fairness and to allow the Court to gain an understanding into the situation from the accused and explain to him when necessary the possible consequences he might face because of his own actions.

25.  The hearing resumed at about 10:50 a.m. The accused kept speaking in a loud voice in the courtroom. From what I understood, he expressed reluctance for the case to continue to be tried by me, and he also pointed out that if I was to continue trying the case he would rather absent himself from the hearing. I explained to him that the Defence Witness was already in the courtroom, and that the hearing could continue. The accused kept performing the act described above. I adjourned the hearing to 2:30 p.m., further reminded the accused that he had the right to attend the hearing and be legally represented, and informed him that if he still refused to attend court, the Court would not enforce his attendance in court again, and would regard him as having waived his right to attend the hearing and the right to put questions to the Defence Witness, and the hearing would continue in his absence.

26.  The hearing resumed at 2:30 p.m. I had listened to the recording of the morning session, and noticed that because of the chaotic state of affairs at that time I might not have accurately grasped the accused's stance. Clarification was needed. As a result, it was arranged that appearance of the accused in court be enforced to look into and ascertain the following matters:

(1) whether the accused would ask the Defence Witness present in court any questions;

(2) in any event, whether he would call other witnesses in the voir dire; and

(3) whether he would make submissions regarding the voir dire.

27.  In court the accused was agitated and kept speaking to himself. It was difficult to communicate effectively. I told the accused explicitly that if he continued the way he was the Court could only take that his stance was "no" regarding each of the above 3 matters. The accused continued with the above behavior. Therefore, I declared that the accused would be regarded as having decided not to ask the Defence Witness any further questions, call any more witnesses or make submissions.

28.  The prosecution expressed that the Defence Witness would not be cross-examined in relation to the voir dire, nor would there be any submissions. The hearing was adjourned to the following day, when the ruling on the voir dire would be given.

3 November 2020

29.  During the morning session, the Court ordered that leave be granted to the CSD officers to enforce the accused's appearance in the courtroom. In the presence of the accused, I delivered my ruling on the voir dire: that the evidence in relation to the admissions made by the accused as alleged by the prosecution was admissible. During that time the accused was rowdy.

30.  After the hearing had concluded, the Court sent the accused a letter[21], which contained my ruling on the voir dire, pointed out that the transcript of the hearing on that day would be given to him when it was ready, and informed him of the arrangements for the next step of the hearing, including the empanelment of a jury. In the letter, the accused was also reminded the importance of his right to attend the hearings and the consequences of his reluctance to attend court.

4 and 5 November 2020

31.  Because the Court needed time to make arrangements for the accused to go into the waiting room of persons in custody to watch and listen to the hearing taking place in the courtroom via the real-time video system in case there were disruptive acts from him resulting that the hearing could not continue smoothly, no hearings were held in these 2 days.

6 November 2020

32.  When the morning session started[22], CSD officers[23] informed the Court that although the accused had been brought to the court building, he refused to come into the courtroom. After hearing submissions from the prosecution, I gave the following orders:

(1) from that day onward, if the accused refused to attend court for no reason, leave be given to the CSD officers to enforce his appearance in the courtroom to attend the hearing using the minimum of reasonably required force under the circumstances;

(2) to avoid unnecessary delays, this order would remain in force throughout the trial of this case, and no individual applications would be required each time the accused refused to attend court for no reason;

(3) but if there were special circumstances or that the circumstances did not allow this to be carried out, a report should be made to the Court first.

33.  Considering the fact that the accused enjoyed the fundamental right to attend the hearing, I also pointed out that if there were disruptive acts from him after he had come into the courtroom, the Court would order that he be taken to the aforementioned waiting room to watch and listen to the trial taking place in the courtroom via the real-time video system.

34.  The system was confirmed to be operating normally after checking by the CSD officers.

35.  After the accused had been brought into the courtroom, he kept vociferating. I gave the following 4 documents to him:

(1) Elements of the offences[24];

(2) Alternative charge[25];

(3) Jury Empanelment Procedures[26], including a reminder of the accused’s right to object to a selected juror-in-waiting to serve as a member of the jury; and

(4) Brief notes on hearing rules and procedures[27].

After that, since the hearing could not proceed owing to the way the accused behaved, it was ordered that he be brought to the waiting room of the Court[28] to watch and listen to the hearing taking place in the courtroom[29] via the real-time video system. The accused kept vociferating in that room. Through the system I explained to the accused the procedures on jury empanelment.

36.  The jury empanelment process followed. During the process, the accused did not raise any objections. After the empanelment had been completed, each of the jurors-in-waiting selected was sworn in to become a member of the jury.

37.  After submissions were made by the prosecution, the hearing was adjourned to the afternoon.

38.  During the morning session, even the accused attended the hearing in the abovementioned waiting room, he kept shouting at the top of his voice. Even though the door was closed, he could still be clearly heard in the courtroom.

39.  In the afternoon session[30], it was arranged for the accused to continue to stay in the waiting room[31] to attend, observe and listen to the hearing in court via the real-time video link[32]. The prosecution started calling witnesses. The accused shouted often and did not cross-examine the 4 prosecution witnesses[33].

9 November 2020

40.  When the morning session started, CSD officers[34] informed the Court that although the accused had been brought to the court building, he refused many times to come into the courtroom. Moreover, when the officers executed the court order in an attempt to bring the accused into the courtroom to attend the hearing using the minimum of reasonably required force under the circumstances, he kept putting up resistance. Even though he was handcuffed, he still put up acts of resistance.

41.  The hearing was stood down to 1:45 p.m. so as to let the accused calm down and consider exercising his right to attend the hearing. The Court also wrote to him[35] to remind him again of his right to attend the hearing and its importance, and he was also advised that if he still refused to attend the hearing in the afternoon, the Court would proceed with the hearing in his absence.

42.  In the afternoon session, a CSD officer[36] pointed out under oath that despite repeated persuasions by the officers the accused made it clear that he would not be present in the courtroom, and confirmed that in the morning even though he was handcuffed, he still put up resistance and was reluctant to be present in the courtroom.

43.  After hearing submissions from the prosecution, I ordered that the hearing continue in the accused's absence. After the hearing, the Court wrote to the accused[37], informing him that the hearing had proceeded in his absence and the progress of adducing evidence. He was again reminded of his right to attend the hearing, and the consequence of proceeding with the hearing in his absence if he did not attend.

10 November 2020

44.  In the morning session, a CSD officer[38] informed the Court under oath that although the accused had been brought to the court building, and when the officers asked him 3 times whether he was willing to appear in court, his replies were that he declined to do so. When the officers tried to enforce his appearance by bringing him into court, he became agitated, and raised both his hands in resistance.

45.  After hearing submissions from the prosecution, I ordered that the hearing proceed in the accused's absence. In accordance with the letter[39] the Court had issued to the accused, CSD officers informed the accused that if he would like to attend the hearing, he could let them know and the Court would make arrangements. The accused indicated that he understood.

46.  After the hearing, the Court wrote to the accused[40], informing him that the hearing had proceeded in his absence and the progress of adducing evidence. He was again reminded of his right to attend the hearing, and the consequence of proceeding with the hearing in his absence if he did not attend,.

11 November 2020

47.  In the morning session, a CSD officer[41] informed the Court under oath that although the accused had been brought to the court building, and when the officers asked him 3 times whether he would attend the hearing, his replies were that he would not. When the officers intended to enforce his appearance in the courtroom with the use of handcuffs, he became unusually agitated, put both his hands behind him and expressed that he was unwilling to attend court.

48.  After hearing submissions from the prosecution, I ordered that the hearing continue in the accused's absence. After the hearing, the Court wrote to the accused[42], informing him that the hearing had proceeded in his absence and the progress of adducing evidence. He was again reminded of his right to attend the hearing, and the consequence of proceeding with the hearing in his absence if he did not attend.

12 November 2020

49.  In the morning session, a CSD officer[43] informed the Court under oath that although the accused had been brought to the court building, and when the officers asked him 3 times, his replies were that he was unwilling to attend the hearing. When the officers intended to enforce his appearance in court with the use of handcuffs, he became unusually agitated, raised both his hands in resistance and expressed that he was unwilling to attend court.

50.  After hearing submissions from the prosecution, I ordered that the hearing continue in the accused's absence. After the hearing, the Court wrote to the accused[44], informing him that the hearing had proceeded in his absence and the progress of adducing evidence. He was again reminded of his right to attend the hearing, and the consequence of proceeding with the hearing in his absence if he did not attend.

13 and 16 November 2020

51.  During the morning sessions in these two days, a CSD officer[45] informed the Court under oath that although the accused had been brought to the court building, he was agitated and expressed that he was unwilling to attend court. He replied that he would not attend court even though the officers asked him 3 times. When the officers tried to enforce his appearance in court with the use of handcuffs, he became even more emotional and raised both his hands in resistance.

52.  At the hearing on 16 November, CSD officers informed the Court that the accused refused to receive the compact discs containing the testimonies of some of the prosecution witnesses[46], which the Court had arranged for him on 13 November.

53.  After hearing submissions from the prosecution in these two days, I ordered that the hearing should continue in the accused’s absence. The CSD officers said that the accused had been informed that if he would like to attend the hearing, he could inform them and the Court would make arrangements. The accused indicated that he understood.

54.  The prosecution closed their case on 16 November. The hearing was adjourned to 23 November so allow the accused to listen to the testimonies of the prosecution witnesses contained in the compact disc. The Court also wrote to the accused[47] to inform him it had come to the Court’s knowledge that he refused to accept the first compact disc that contained the testimonies of the prosecution witnesses, to remind him that it was in his interest to listen to the recording and the Court would allow him sufficient time for that, and to point out to him that if he did not spend time listening to it the Court would not adjourn the hearing because of that. The Court also informed the accused that the compact disc was in the custody of the CSD, and if he would like to listen to it the officers would make arrangements. The CSD officers informed the Court that such arrangements could be made even at weekends.

55.  After the hearings on 13 and 16 November, the Court wrote to the accused[48], informing him that the hearings were conducted in his absence and the progress of adducing evidence. He was also reminded of his right to attend hearings and its importance, and the consequence of the hearing being conducted in his absence if he did not attend. In particular, the Court pointed out to him[49] that, at the hearing on 23 November, the Court would consider whether the prosecution evidence could establish a prima facie case, and the accused was entitled to make submissions in this regard. If the accused did not exercise his right to appear at the hearing, the Court would make a ruling on this issue in his absence without submissions from the defence.

17-22 November 2020

56.  The Court adjourned for 4 days to allow the accused to have sufficient time to listen to the recording[50] of the prosecution witnesses’ testimonies. There were no hearings in the weekend on 21 and 22 November, which the accused could also make use of. The accused had a total of 6 days to listen to the audio recording.

57.  On 17 November, through CSD officers the Court delivered a letter with an audio disc containing the testimonies of the remaining witnesses (prosecution witnesses no. 14-29) attached[51] to the accused. He refused to receive the disc[52].

23 November 2020

58.  The hearing started. CSD officers[53] informed the Court on oath that the accused became emotional having been brought to the court building and was disinclined to attend court. When the officers intended to bring him into the courtroom by force with the use of handcuffs, he became even more emotional and raised both his hands to put up resistance. The officers present asked him 3 times whether he would attend court, he refused on all those occasions.

59.  After hearing submissions from the prosecution, I ordered that the hearing should proceed in the accused’s absence.

60.  The prosecution applied to call 3 additional witnesses on the photos submitted to the Court, which the Court allowed. After the 3 witnesses had been called, the prosecution closed their case. The hearing was adjourned to 2:30 p.m.

61.  In the interim period, the Court wrote to the accused[54] informing him of the situation and that arrangements could be made for him to listen to the audio recording of the testimonies of the 3 prosecution witnesses. He was also informed that in the afternoon the Court would hear submissions from the prosecution on whether the prosecution’s evidence could establish a prima facie case, and that if he did not attend court, the Court would regard him as having waived his right to attend the hearing and make submissions on the issue, and would make a ruling in the absence of submissions from the defence.

62.  In the afternoon session, CSD officers informed the Court on oath that the accused was emotional and disinclined to attend court. When the officers intended to bring him into the courtroom by force with the use of handcuffs, he became even more emotional and raised both his hands to put up resistance. The officers present asked him 3 times whether he would attend court, he refused on all those occasions.

63.  The officer confirmed that the letter the Court issued to the accused in the morning was delivered to the accused. The accused understood the contents but still refused to let the officers bring him to attend court.

64.  After hearing submissions from the prosecution I ordered for the hearing to proceed in the accused’s absence.

65.  I ruled that there was a case to answer in respect of each of the two charges.

66.  The hearing was adjourned to the following day.

67.  The Court wrote to the accused[55] informing him of the progress of the hearing. He was also informed that the next step of the trial process would be for the defence to decide whether to adduce any evidence, and if the defence case was closed without adducing any evidence closing submissions would be proceeded with. The accused was also reminded that, if he did not attend the hearing, the Court would regard him as having waived his right to attend the hearing, adduce evidence and make closing submissions, and would embark on summing up the case for the jury and giving directions to them.

24 November 2020

68.  In the morning session, a CSD officer[56] on oath informed the Court of the situation, which was more or less the same as before.

69.  After hearing submissions from the prosecution, taking into account the situation then, the development of the matter as well as the stance and attitude the accused had been adopting, I ruled that the hearing proceed in the accused’s absence.

70.  As stated in the Court’s letter to the accused, I also ordered that the accused be regarded as having decided not to testify, call witnesses, adduce evidence, or make closing submissions.

71.  I adjourned the hearing to 11:00 a.m. and wrote to the accused[57], informing him of the situation and urging him to exercise his right to attend the hearing.

72.  The hearing resumed. The accused was not present. A CSD officer[58] informed the Court of the situation under oath, that it was more or less the same as before. I started summing up the case for the jury and giving directions in law, and kept the accused informed as well as reminding him of the relevant rights in writing[59] after the hearing.

25 November 2020

73.  The hearing commenced. A CSD officer[60] informed the Court of the situation on oath, that it was more or less the same as before.

74.  After hearing submissions from the prosecution, I ordered that the hearing proceed in the accused’s absence.

75.  The summing-up of the case and directions to the jury continued.

76.  The hearing concluded. The Court wrote to the accused[61], informing him of the situation and urging him to exercise his right to attend the hearing.

26 November 2020

77.  The hearing commenced. A CSD officer[62] informed the Court of the situation on oath, that it was more or less the same as before.

78.  After hearing submissions from the prosecution, I ordered that the hearing proceed in the accused’s absence.

79.  The summing-up of the case and directions to the jury continued.

80.  At the conclusion of the above, the jury retired for deliberation. Immediately the Court wrote to the accused[63] informing him that the hearing had proceeded in his absence and the progress of the hearing. Again, he was reminded of his right to attend the hearing, and the consequence of the hearing being held in his absence if he did not attend.

81.  In the interim period, there was a question from the jury. When the Court convened for that purpose, a CSD officer[64] informed the Court of the situation on oath, that it was more or less the same as before.

82.  After hearing submissions from the prosecution, I ordered that the hearing proceed in the accused’s absence.

83.  After I had given further directions to the jury, they retired to continue with their deliberation. No verdict was reached that day.

84.  The Court wrote to the accused[65], informing him that the hearing had proceeded in his absence and the progress of the hearing. Again, he was reminded of his right to attend the hearing, and the consequence of the hearing being held in his absence if he did not attend.

27 November 2020

85.  The hearing commenced. A CSD officer[66] informed the Court of the situation on oath, that it was more or less the same as before.

86.  After hearing submissions from the prosecution, I ordered that the hearing proceed in the accused’s absence.

87.  At the request of the jury, I gave further directions on certain issues. After that, the jury retired to continue with their deliberation.

88.  At about 10:40 a.m., before the Court was able to write and notify the accused of the progress of the hearing, the jury informed the Court that a verdict had been reached.

89.  The hearing commenced. A CSD officer[67] informed the Court of the situation on oath, that it was more or less the same as before.

90.  After hearing submissions from the prosecution, I ordered that the hearing proceed in the accused’s absence.

91.  Later, the jury announced their verdict. The accused was found not guilty on Charge 1 but guilty on Charge 2: Arson being reckless as to whether life of another would be endangered (alternative charge). The case was adjourned to 11 December for reports, mitigating submissions and sentence.

92.  After the Court had been adjourned, the Court wrote to the accused[68] informing him of the situation and that the Court would be having reports and hearing mitigating submissions of the defence on the next hearing day (11 December). He was advised to exercise his right to attend the hearing and that to legal representation, and the consequences of his absence.

11 December

93.  The hearing commenced. A CSD officer[69] informed the Court of the situation on oath, that it was more or less the same as before.

94.  After hearing submissions from the prosecution, I ordered that the hearing proceed in the accused’s absence, and regarded the accused as having waived his right to make mitigating submissions.

95.  I adjourned the hearing to 3:00 p.m. to consider the sentence, and wrote to the accused[70] to inform him of the situation, and to tell him expressly that if he did not attend the hearing in the afternoon, or that his behavior expressly indicated that he waived the right to attend the hearing, the Court would announce the sentence in his absence.

Principles and factors under consideration

96.  During the process of consideration, I have taken into account the right to a fair trial conferred to the accused by the Basic Law and the Bill of Rights, in particular article 11(2)(d) of the Hong Kong Bill of Rights[71], which clearly sets out that everyone charged with a criminal offence shall enjoy the minimum guarantee of attending court to face trial.

97.  I have also considered and referred to the principles and factors expounded in the following cases:

(1) R v Jones (Anthony)[72];

(2) HKSAR v Singh Gursewak[73];

(3) HKSAR v Chow Ho Yin[74]; and

(4) R v Hayward[75].

98.  A judge has the discretion to commence and/or continue a trial in the accused’s absence. From the above cases, one can see that the important principles and factors to be considered are as follows:

(1) A defendant has, in general, a right to be present at his trial and a right to be legally represented.

(2) Those rights can be waived, separately or together, wholly or in part, by the defendant himself. They may be wholly waived if, knowing, or having the means of knowledge as to, when and where his trial is to take place, he deliberately and voluntarily absents himself and/or withdraws instructions from those representing him.

(3) They may be waived in part if, being present and represented at the outset, the defendant, during the course of the trial, behaves in such a way as to obstruct the proper course of the proceedings and/or withdraws his instructions from those representing him.

(4) The trial judge has a discretion as to whether a trial should take place or continue in the absence of a defendant and/or his legal representatives.

(5) That discretion must be exercised with great caution and it is only in rare and exceptional cases that it should be exercised to enable a trial to take place or continue, particularly if the defendant is unrepresented.

(6) In exercising that discretion, fairness to the defence is of prime importance but fairness to the prosecution must also be taken into account. The judge must have regard to all the circumstances of the case including, in particular:

(i) the seriousness of the case;

(ii) the nature and circumstances of the defendant’s behavior in absenting himself from the trial or disrupting it, as the case may be and, in particular, whether his behavior was deliberate and voluntary such that he had plainly waived his right to attend court;

(iii) whether an adjournment might result in the defendant being caught or attending voluntarily and/or not disrupting the proceedings;

(iv) the likely length of such an adjournment;

(v) whether the defendant, though absent, is, or wishes to be, legally represented at the trial or has, by his conduct, waived his right to legal representation, and whether an absent defendant’s legal representatives are able to receive instructions from him during the trial and the extent to which they are able to present his defence;

(vi) the extent of the disadvantage to the defendant in not being able to give his account of events, having regard to the nature of the evidence against him;

(vii) the risk of the jury reaching an improper conclusion because of the absence of the defendant;

(viii) the seriousness of the offence, which affects the defendant, victim and the public;

(ix) the general public interest and the particular interest of victims and witnesses that a trial should take place within a reasonable time of the events to which it relates;

(x) the effect of delay on the memories of witnesses;

(xi) where there is more than one defendant and not all have absconded, the undesirability of separate trials, and the prospect of a fair trial for the defendants who have attended court.

(7) If the judge decides that a trial should take place or continue in the absence of an unrepresented defendant, he must ensure that the trial is as fair as the circumstances permit. He must, in particular, take reasonable steps, both during the process of evidence being adduced and in the summing-up, to expose weaknesses in the prosecution case and to make such points on behalf of the defendant as the evidence permits. In summing up he must warn the jury that absence is not an admission of guilt and adds nothing to the prosecution case.

99.  Both the nature of the offences and the facts in this case are very serious.

100.  The case took place on 27 July 2018, and most of the prosecution evidence came from public officers in the execution of their duties.

101.  The accused was arrested instantly and charged on 27 July 2018. The case was originally set down for trial in February 2020, but was postponed because of the pandemic. The trial commenced in this Court before me on 16 October 2020, and prior to that there had been a number of pre-trial reviews.

102.  It has been more than 2 years since the case took place. Avoidance of unnecessary delays is in line with the accused’s personal interests and those of society, and this is also where justice lies.

103.  The accused has been unrepresented the whole time. Very careful consideration has to be given to whether the trial should proceed in his absence in these circumstances. The Court has suggested on numerous occasions that the accused retain a lawyer or apply for legal aid, but he did not do so and also refused the Court’s arrangements for legal aid[76].

27 October, 2, 3 and 6 November 2020

104.  The Court conducted short hearings in these 4 days when the accused was not in court. They involved mostly case management matters, mainly on the management arrangements for the next step of the hearing, and how to enable the accused to watch and listen to the hearing taking place in the courtroom via the real-time video system even when he was not in there, if the situation so required. Since 23 October, the accused had been putting up disruptive behavior on numerous occasions during the hearings.

Enforcing the accused’s appearance in court

105.  On 2 November, I ordered for the first time that CSD officers be allowed to enforce the accused’s appearance in court using the minimum of reasonably required force under the circumstances. The matters I have considered included the following:

(1) Since 23 October, the accused had been putting up disruptive behavior during the hearings, preventing the hearings from running normally;

(2) On 27 October, the accused’s behavior made it difficult for the CSD officers to bring him into the courtroom so that the hearing had to be stood down;

(3) By 2 November, the hearing was already interrupted for 5 days because of the accused’s health condition since 28 October; but the situation remained the same. His emotions and behavior did not improve because of these few days’ adjournment;

(4) The accused was not on bail. He was in the custody of the CSD, and there was no reason for him not to appear in court as he pleased and for no reason;

(5) To arrange the accused to appear in court and to avoid unnecessary delays to the hearings, I gave the order that the minimum of reasonably required force be allowed to bring the accused into the courtroom;

(6) The purpose of the order was to have the accused appear in the courtroom to attend the hearing. Therefore, the means and the extent of the force available should only conform to and be commensurate with this purpose.

Hearings conducted in the accused’s absence

106.  On 9 November, I ordered that the hearing proceed in the accused’s absence. Matters I have considered and the arrangements made include the following:

(1) it is a fundamental right for the accused to attend the hearing, and it is also an important part of a fair trial and administration of justice;

(2) on previous hearing days, such as 23 and 27 October, the Court would stand down the hearing when the accused put up disruptive behavior so as to let him calm down;

(3) on 27 October, the Court took the initiative in arranging staff from the Probation Office and Legal Aid Department to meet the accused to find out whether there was any service, such as counselling or legal assistance, that could be provided to him, but to no avail;

(4) by 2 November, the hearing was already interrupted for 5 days because of the accused’s health condition, starting from 28 October; but the situation remained the same. His emotions and behavior did not improve because of these few days’ adjournment;

(5) to arrange the accused to appear in court to attend the hearing, and to avoid unnecessary delays to the hearing, I gave the order that day that the minimum of reasonably required force be allowed to bring the accused into the courtroom;

(6) the accused was brought into the courtroom by force that day, but he was shouting throughout the full-day hearing, and the Court found it difficult to communicate effectively with him at all;

(7) on that day, the Defence Witness came to court to continue her testimony for the voir dire, but the accused did not ask her questions, spoke in an agitated manner, did not take part in the hearing and expressed on numerous occasions that he would not ask the witness further questions. Since the accused had expressed this before, and for quite a number of days since 23 October the accused was still in an emotional state, on more than one occasion the Court made it clear to him that if he kept on like that, the Court could only take that his stance was “no” regarding each of the following 3 matters:

(i) whether the accused would put questions to the Defence Witness who had come to court;

(ii) in any event, whether he would call other witnesses in the voir dire; and

(iii) whether he would make submissions regarding the voir dire.

I have also taken into account:

(i) the Defence Witness had just begun her testimony with only a few statements made;

(ii) the prosecution also expressed that she would not be cross-examined in these circumstances;

(iii) the accused had cross-examined all the prosecution witnesses and testified himself;

(iv) the issue in the voir dire in this case involved only a finding of fact, and I had a good grasp of the issue.

After careful consideration, I was of the view that to deem the the voir dire as concluded would not cause any unfairness. If it went on, it would include further adjournments in the hope that the accused would calm down, which was impractical and would be too much of an expectation;

(8) on 3 November, the accused arrived at the courtroom under the enforcement measures by the CSD officers. He kept shouting, and I could barely deliver my ruling on the voir dire;

(9) before this day the Court had already advised the accused on a number of occasions that if his speech and behavior would disrupt the hearing, the Court had the authority to order that the hearing be conducted in his absence;

(10) After the hearing on that day concluded, the Court wrote to the accused, informing him:

(i) of the ruling of the voir dire;

(ii) that the empanelment of the jury would take place on the next hearing day;

(iii) the various rights he had as a reminder, especially the right to attend the hearing; and

(iv) the consequences of not appearing in the courtroom to attend the hearing or putting up disruption during the hearing as a reminder;

(11) In the following few days, the Court was adjourned for the necessary technical and administrative arrangements to be made to cater for the situations that might arise, e.g. the accused’s behavior being disruptive to the hearing process so that the accused could not be allowed to stay in the courtroom, he could be led into the waiting room of the Court to watch and listen to the hearing via the real-time video system and to speak to the Court via the system. The purpose was to allow the accused to keep taking part in the hearing when he disrupted the proceedings taking place in the courtroom and the situation required that he be kept out of the courtroom;

(12) on 6 November, the accused was disinclined to attend court and was brought into the courtroom by force, but he was vehement and rowdy. I ordered that he be brought into the above-mentioned waiting room to take part in the hearing. The jury was empaneled that day, and the prosecution started calling witnesses after making the opening submission. The accused kept being rowdy throughout the process, and part of it could even constitute contempt. The noise was so great that he could be clearly heard in the courtroom even when the door was closed. Although the Court had set up an audio-visual system for him, it was obvious that he was not using it most of the time[77];

(13) in the morning on 9 November, the accused reached the court building but refused to appear in court. He kept resisting when CSD officers were executing the Court’s order to enforce his attendance in court, and the minimum of reasonably required force under the circumstances was unable to achieve the purpose of bringing the accused into the courtroom to attend the hearing;

(14) the Court adjourned the hearing to the afternoon for the accused to calm down, and wrote to remind him of his right to attend the hearing and its importance, and to inform him that the consequence of his refusal to attend the hearing would result in the hearing proceeding in his absence;

(15) in the afternoon session, because of the accused’s behavior of resistance, the CSD officers did not manage to bring the accused into the courtroom to attend the hearing;

(16) the accused’s expression and behavior in both the morning and afternoon sessions that day was sufficient for me to come to the judgment that he purposefully abandoned or planned to abandon his right to attend the hearing willingly and on his own initiative for no reason and with full knowledge of the consequences;

(17) to attend the hearing is an important right for the accused. Although the Court had the discretion to proceed with the hearing in the accused’s absence when the accused abandoned his right willingly and on his own initiative, such discretion has to be exercised with great caution;

(18) I have considered whether in addition to exercising the abovementioned discretion, there were other ways to allow the accused to exercise his right to attend the hearing as much as possible and at the same time allowing the hearing to proceed smoothly;

(19) because of this I have made arrangements for the accused in the waiting room to watch and listen to the hearing taking place in the courtroom via the real-time video system;

(20) this measure was implemented on 6 November, and I have been watching the utility and efficacy of the measure;

(21) during the hearing on that day, the accused shouted in such a loud voice every now and then in that room that even when the sound-receiving function and the door were closed, one could still hear him clearly in the courtroom, causing great disruption, although the hearing could still proceed;

(22) before the empanelment of the jury, the Court planned to explain to the accused matters he should know at the time of the hearing; but because of his disruptive behavior it could not be done effectively. Therefore, the only thing that could be done was to give him 4 documents[78] to let him read by himself;

(23) during the empanelment of the jury the accused kept shouting without making any objections;

(24) the accused also shouted often when the prosecution witnesses were under examinations-in-chief, and no cross-examinations were conducted after the examinations-in-chief;

(25) the accused did not appear to be paying attention to what was being shown on the video system, which was behavior of his own initiative and the Court could not force it upon him;

(26) as of that day the accused had already put up disrupting acts on many hearing days;

(27) little could be achieved through the use of a real-time video system, through which the accused could participate in the hearing;

(28) that adjournments proved to be of no use in helping the accused calm down;

(29) the accused simply refused to attend court, and he had done so on more than 3 days;

(30) the Court made an order for using reasonably required force under the circumstances to enforce the accused’s appearance in court, but according to the CSD Officer’s testimony given under oath, which I believed, the accused had been putting up resistance since 9 November;

(31) the force the CSD officers could employ for the execution of the above order had to be commensurate with the purpose of bringing the accused into the courtroom to attend the hearing;

(32) had the CSD officers used greater force to enforce the accused’s appearance in court, the consequence would have been inconsistent with and disproportionate to the purpose of having the accused attend the hearing;

(33) one of the reasons the accused was disinclined to attend court was that he did not like to have me continue trying the case; however, his request for a change of trial judge was refused after my consideration of his grounds[79]; from what he stated afterwards, no sufficient grounds for replacing the trial judge were put forward; and

(34) I had considered whether the hearing should be stayed and the jury disbanded; if this had been done and soon followed by an immediate re-trial, no purpose would have been served; if the hearing had been adjourned the hearing date would have to be months later, and this would not be in line with public interests and be detrimental to those of the accused’s and that it might not necessarily be of any use.

Daily review of the situation

107.  The hearings have been conducted in the accused’s absence since 9 November. Every day before I made the decision I would review the situation, which included listening to the reports made by CSD officers under oath and submissions by the prosecution, and would consider the situation afresh. The factors and matters considered included those mentioned previously. I have the following observations and implemented the following measures to safeguard the accused’s rights:

(1) to arrange the accused’s appearance in court to attend the hearing and to prevent unnecessary delays to the hearing, I made an order that allowed the minimum of reasonable force to bring the accused into the courtroom;

(2) the implementation of this measure started on 6 November;

(3) the order to enforce the accused’s attendance in court was in force and its implementation continued throughout the hearing days, and I would listen to the CSD officers’ reports under oath every day before the hearing started;

(4) from the CSD officers’ testimonies, which I believed, the force which they had used was in conformity with and proportionate to the purpose mentioned;

(5) if the CSD officers had employed greater force to enforce the accused’s appearance in court, that would have been inconsistent with and disproportionate to the purpose of having him attend the hearing;

(6) based on the credible testimonies given by the CSD officers under oath as well as the expression by and behavior of the accused for all these days since 9 November, the stance expressed by him on each of these days was that he was disinclined to appear in the courtroom to attend the hearing, nor was he willing to be brought to court by force, and put up resistance to the Officers’ enforcement actions;

(7) I have considered whether apart from exercising the above discretion, there were other options to allow the accused to exercise the right to attend the hearing as much as possible and at the same time to have the hearing proceed smoothly;

(8) for that purpose I have made arrangements for the accused to watch and listen to the hearing taking place in the courtroom via the real-time video system in the waiting room;

(9) the accused did not seem to be paying attention to what was being shown on the video system during the hearing under such an arrangement;

(10) not only little was achieved with the above arrangement to have the accused take part in the hearings, but he still caused disturbances to the hearings; more importantly, the accused was obviously disinclined and did not intend to come into the courtroom;

(11) every day the Court would keep the accused informed by way of letters about the progress of the hearing, matters that needed handling at the following stage of the hearing, a reminder to him that to attend court was an important right of his and the consequence of his refusal to attend court, and to allow him time for consideration and preparation;

(12) in every letter to the accused, the Court did remind him of the rights he was entitled to, and also pointed out to him that even he might have expressly renounced his right to attend the hearing at a certain moment, he could change his mind any time and exercise the right. In the daily correspondence to the accused, the Court did reiterate this point, remind him of the same, and the CSD officers were also advised to be attentive to this point. In the daily report by the CSD officers, it was reported that the accused had been reminded of this right, and that the accused expressed that he understood;

(13) on all hearing days, including those days on which the accused knew full well that the hearing had reached certain important stages, he never at any time requested to attend the hearing;

(14) on 13 November, via the CSD officers the Court gave the accused a compact disc containing the testimonies of 13 prosecution witnesses so as to allow him to know their testimonies, but he refused to accept the disc;

(15) the prosecution closed their case on 16 November, and after the hearing the Court wrote to the accused informing him that:

(i) the prosecution had closed their case;

(ii) the next stage would be half-time submissions;

(iii) the accused had the right to make half-time submissions to the Court;

(iv) if he gave up his right to attend the hearing on his own initiative and on purpose, the Court would regard him as renouncing his right and not intending to make any submissions, and the Court would rule whether there was a case to answer in the absence of submissions from the defence;

(16) on 17 November, via the CSD officers the Court gave the accused a compact disc containing the testimonies of another 16 prosecution witnesses so as to allow him to know their testimonies, but the accused refused to accept it;

(17) the Court adjourned the hearing to 23 November so as to allow the accused sufficient time to listen to the contents on the compact disc;

(18) the Court stood down the case for 4 days after the order for adjournment had been made; coupled with a weekend of 2 days, there were altogether 6 days for the accused to have sufficient time to listen to the recordings of all the prosecution witnesses’ testimonies;

(19) although the accused had refused to accept the compact disc, the Court arranged for the disc to be kept with the CSD. If there was any request from the accused, arrangements could be made for him to listen to it, and such an arrangement was made known to the accused through the Court’s correspondence with him;

(20) CSD officers informed the Court on oath that the accused never requested to listen to the recordings, and it showed that the accused did not mean to take part in the hearing at all;

(21) on 23 November, the prosecution called 3 additional witnesses, for which the Court made arrangements to enable the accused to listen to the recordings, but the accused refused;

(22) in the course of the trial, I would maintain fairness as far as possible, taking reasonable steps to point out weaknesses in the prosecution case as well as the inadequacies in the prosecution witnesses’ testimonies; and

(23) I would give appropriate directions to the jury during the summing-up.

Directions to jury

108.  In the course of the trial, the summing-up and giving directions, in addition to covering the matters of the law in relation to this case and the evidence, I also advised the jury the following:

(1) that it was in compliance with the law that the accused did not appear in the courtroom to attend the hearing, and the jury should not speculate about the reason;

(2) that the accused was not in the courtroom bore no relation at all as to the jury’s decision on the accused’s guilt or innocence;

(3) that the jury had to arrive at a verdict based only on the directions given by the judge and the evidence;

(4) that no unfavorable speculation or adverse consideration should be directed toward the accused because he did not appear in court to attend the hearing; the accused’s absence at the hearing would not strengthen the prosecution’s evidence against him;

(5) that they should not be affected by accused’s display of emotions or behavior; the accused’s behavior was absolutely not evidence against him, and they had to forget about his behavior;

(6) that they could not automatically consider the prosecution witnesses’ evidence acceptable simply because there was no cross-examination by the defence; and

(7) the defence was under no obligation to show the motive or reason behind a prosecution witness’s dishonesty, nor do they need to prove that a PW was lying.

Conclusion

109.  This was a very serious case, which took place more than 2 years ago. The accused was not on bail, therefore a trial held as soon as possible was in line with the interests of society and those of the accused.

110.  There were repeated disruptions to the hearing by the accused. Although the Court had adjourned or stood down the case for him to calm down, little was achieved.

111.  Later on the accused did not even appear in court to attend the hearings on purpose and for no reason. The order to enforce the accused’s appearance in court cannot take effect.

112.  The accused clearly expressed that he was disinclined to attend court, and his behavior made me believe that consciously and on his own initiative, he willingly renounced his right to attend the hearing for no reason and with full knowledge of the consequences.

113.  That the trial was conducted in the accused’s absence would certainly be disadvantageous to him, especially when he was unrepresented.

114.  However, the accused had on numerous occasions refused the Court’s suggestions of making arrangements for legal aid.

115.  I did gain an understanding from the accused as to his case during the pre-trial review[80]. My assessment was that it was disadvantageous to him that he did not attend the hearing to present his case, but the extent of such disadvantage was not serious.

116.  I was of the view that given proper directions, the risk of the jury arriving at an inappropriate conclusion would be slight.

117.  Discharging the jury for a trial de novo was not in line with the interests of social justice, and could only be of limited use.

118.  Although the accused was absent from the hearing, with the steps I had taken, the disadvantage caused to the accused could be minimized.

119.  Taking into account the clear stance taken by the accused, it was difficult for the CSD officers to enforce his appearance in court. Even though he had been brought into the courtroom successfully, he disrupted the proceedings and little was achieved with adjournments. Considering the overall circumstances, I was of the view that there was no other option but to proceed with the hearing in the accused’s absence, otherwise unnecessary, serious delays would be caused to the case, which would also be unfair to both the prosecution and defence. Before I came to this decision, I had carefully considered the risk of unfairness and the disadvantages this way of handling the case might have caused to the accused.

Remarks

Documents marked with MFI and mentioned herein are kept in the Court’s file. A copy of them (except MFI-32, which is about the defence case) in conjunction with this Reasons for Orders have been distributed to the prosecution and the accused. Those documents shall not be distributed to other parties or uploaded to the internet.

List of MFI Documents

Document Number	Description
MFI-1	Letter dated 27 October 2020 issued to the accused by the Court
MFI-2	Letter dated 3 November 2020 issued to the accused by the Court
MFI-3	4 documents given to the accused by the Court on 6 November 2020 (1) Jury empaneling procedures (2) Brief notes on hearing rules and procedures (3) Alternative charge (4) Elements of the offence
MFI-4	Letter dated 9 November 2020 issued to the accused by the Court, on an adjournment to allow the accused time and opportunity to consider attending court
MFI-5	Letter dated 9 November 2020 issued to the accused by the Court, on progress of the hearing and a reminder of the accused’s relevant rights
MFI-6	Letter dated 10 November 2020 issued to the accused by the Court
MFI-7	Letter dated 11 November 2020 issued to the accused by the Court
MFI-8	Letter dated 12 November 2020 issued to the accused by the Court
MFI-9	Letter dated 13 November 2020 issued to the accused by the Court, on progress of the hearing and a reminder of the accused’s relevant rights
MFI-10	Letter dated 13 November 2020 issued to the accused by the Court, on the provision of the audio disc containing the testimonies of prosecution witnesses no. 1-13
MFI-11	Acknowledgement of receipt of and undertaking on the audio disc containing the testimonies of prosecution witnesses no.1-13, which the accused refused to sign
MFI-13	Letter dated 16 November 2020 issued to the accused by the Court, on progress of the hearing and a reminder of the accused’s relevant rights
MFI-14	Letter dated 16 November 2020 issued to the accused by the Court, on the Court’s knowledge of the accused’s refusal to accept the disc and instruction given to the CSD to keep the disc
MFI-15	Letter dated 17 November 2020 issued to the accused by the Court, on the provision of the audio disc containing the testimonies of prosecution witnesses no.14-29
MFI-16	On the acknowledgement of receipt of and undertaking on the audio disc containing the testimonies of prosecution witnesses no.14-29, which the accused refused to sign
MFI-17	Letter dated 23 November 2020 issued to the accused by the Court, on progress of the morning session and a reminder of the accused’s relevant rights
MFI-18	Letter dated 23 November 2020 issued to the accused by the Court, on progress of the afternoon session and a reminder of the accused’s relevant rights
MFI-19	Letter dated 24 November 2020 issued to the accused by the Court, on giving the last chance for the accused to consider putting forward the defence case
MFI-20	Letter dated 24 November 2020 issued to the accused by the Court, informing him that the Court had commenced giving directions to the jury
MFI-21	Letter dated 25 November 2020 issued to the accused by the Court
MFI-22	Letter dated 26 November 2020 issued to the accused by the Court to inform him that the jury had retired for deliberation
MFI-25	Letter dated 26 November 2020 issued to the accused by the Court to inform him that no verdict was reached that day
MFI-26	The accused’s psychiatric report dated 4 November 2019
MFI-27	Letter submitted by Queen Elizabeth Hospital to the Court on the accused’s health condition
MFI-28	Letter dated 27 November 2020 issued to the accused by the Court
MFI-29	Confirmation of instruction to Legal Aid Department by the accused
MFI-30	Written reply to the Court by the Probation Officer
MFI-31	Memo to the Court by Queen Elizabeth Hospital on the accused’s unsuitability to attend court
MFI-32	Transcript of the defence case on the hearing dated 18 November 2020
MFI-33	Letter dated 10 December 2020 issued to the accused by the Court
MFI-34	Letter dated 11 December 2020 issued to the accused by the Court

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Richard K. L. Man, Barrister-at-law.