HKSAR v. CHAN HO

CACC 399/2013

[2020] HKCA 640

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 399 OF 2013

(ON APPEAL FROM DCCC NO 441 OF 2013)

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BETWEEN

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J U D G M E N T

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1.  The applicant (D1) and D2 were jointly charged with two offences, namely theft, contrary to section 9 of the Theft Ordinance, Cap 210 (Charge 1) and fraud, contrary to section 16A of the same Ordinance (Charge 2). Following a trial in absentia before HH Judge D’Almada Remedios (as D’Almada Remedios J then was), the applicant and D2 were, on 10 September 2013, convicted and each sentenced in their absence to 4 years’ imprisonment.

2.  D2 subsequently appealed against both his conviction and sentence. On 26 November 2014, his conviction was quashed by the Court of Appeal, the reasons for which were delivered on 11 December 2014^[1].

3.  Some five years and one month later, by way of a Form XI Notice of Application for leave to appeal filed on 23 December 2019, the applicant sought leave to appeal against both his conviction and sentence out of time.  By her Perfected Grounds of Appeal, dated 13 April 2020, Ms Chong, counsel for the applicant on the instructions of the Director of Legal Aid, has advanced two grounds of appeal against conviction in the following terms:

“(1) The Judge wrongly exercised her discretion in determining to conduct the trial in the absence of the Applicant (D1), in that:

(i) She made her determination primarily on the consideration that D1 had deliberately and voluntarily absent himself from trial;

(ii) She failed to consider / weigh other factors from trial in absentia as laid down in R v Jones (Anthony) [2003] 1 AC 1 and endorsed by Court of Appeal in HKSAR v Kwan Wai Keung & Others CACC 259/2011.

(2) The trial in absentia was a material irregularly which rendered the trial unfair and the convictions unsafe.”

4.  The applicant acts in person in relation to his application for leave to appeal against sentence out of time, having been refused legal aid on 5 March 2020.  In his homemade submissions attached to his Form XI Notice, he complains that it was unfair for the judge to pass sentence on him in his absence.

5.  As for the reason for the present application being made significantly out of time, the applicant has explained in his homemade submissions attached to the Form XI Notice that he was not arrested until 2019; and it was only then that he came to know about his conviction and sentence.

6.  Ms Ng, for the respondent, does not resist the application in respect of conviction, but opposes leave in respect of sentence.  Further, she does not object to both applications being determined on the papers without an oral hearing.

7.  The present application for leave to appeal conviction is based primarily upon the same argument that the trial of the applicant was wrongly conducted in absentia, on which argument the Court of Appeal has previously allowed D2’s appeal against conviction.  Whilst it does not necessarily follow that an unsafe conviction arising from a material irregularity in the case of D2 must equally apply to the applicant, there is a reasonable argument that it should.  Given the respondent’s response to this application, I shall grant leave to appeal on all proposed grounds of appeal against conviction. 

8.  Strictly speaking, the applicant has made no criticism of the length of his sentence.  Rather, he is aggrieved by the fact that the trial below was conducted in his absence.  If that is his real complaint, which has already been subsumed in counsel’s grounds of appeal against conviction, it is a matter for him to decide whether it serves any useful purpose in pursuing the appeal against sentence himself, since the practical utility of pursuing the appeal against sentence is obviously dependent on the outcome of the appeal against conviction.  To enable judicial resources to be better spent, I direct that the applicant’s application for leave to appeal against sentence out of time be heard at the same time as his appeal against conviction.