HKSAR v. WALSH KENT ANDREW

HCCC 368/2015

[2018] HKCFI 688

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 368 OF 2015

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FURTHER RULING ON PERSONAL ATTENDANCE

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Introduction

1.  The accused, Andrew Kent Walsh, is seeking to be arraigned without him being physically present.  He faces an indictment charged with the offence of trafficking in a dangerous drug but under his conditions of bail he is currently residing in Australia.  The prosecution has indicated that it will terminate the proceedings and offer no evidence against him.  This circumstance invokes the application of section 51A of the Criminal Procedure Ordinance, Cap 221, (the CPO).  The issue for resolution is where an accused intends to plead not guilty and the prosecution intends to offer no evidence can arraignment be conducted without the physical presence of the accused with the accused’s counsel entering a plea of not guilty on the accused’s behalf or can the arraignment be conducted via video link invoking the court’s inherent jurisdiction.  I have concluded that the accused’s physical presence is required in order to fulfil his legal obligations to be present at his arraignment and to answer his bail.  I have found no exceptional or extenuating circumstance or reason to warrant otherwise.

2.  I previously handed down a ruling on the issue as to whether the accused’s personal attendance before this Court was required in order for him to be formally arraigned.[1] Two methods were proposed by which it was suggested that this could be done.  One method was pursuant to section 49(1) of the CPO, which concerns the arraignment of an accused, and the other was pursuant to sections 79H to 79L of the CPO, the Live Television Link (Witnesses outside Hong Kong) Rules, and Practice Direction 9.9.  I concluded in my ruling that the accused’s personal attendance was required by these two methods.

3.  An application was filed by the accused for a certificate for leave to appeal the ruling to the Court of Final Appeal but this was abandoned at a hearing on 17 January 2018 on the accused’s behalf by Mr Gerard McCoy, SC[2], submitting that no issue would be taken as to the correctness of the ruling.  Instead, an application was made for a further ruling on this issue on a different basis. As directed, the parties filed written submissions on this issue prior to a hearing on 24 February 2018.  After the hearing, I directed the parties to file by 8 March 2018 further written submissions to address the proposition of an accused’s trial taking place in his absence without being arraigned.  There followed further written submissions from the parties on inherent jurisdiction on 13 and 16 March 2018.  This is my ruling which I said I would hand down in due course at the conclusion of the hearing.

Background

4.  The accused is an Australian national who on 3 March 2015 was arrested by officers of the Customs and Excise Department when leaving Hong Kong to return to Australia following the discovery of a large quantity of methamphetamine hydrochloride, commonly known as Ice, in his check-in luggage.  He was charged with the offence of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

5.  On 11 September 2015, the accused was committed to the Court of First Instance for trial having indicated a plea of not guilty to the charge.  An indictment dated 15 September 2015 was filed in the Court of First Instance, setting out the allegations of the offence charged. 

6.  On 11 November 2015, his case was fixed for a pre-trial review on 15 April 2016 and fixed for trial commencing on 15 June 2016.  His case was one of the batch of similar cases that came before the courts, that were variously dealt with together in a series of hearings mainly concerned with the common issue of disclosure. 

7.  The accused maintained that he was innocent of the charge and that he had been tricked by members of a drug syndicate to come to Hong Kong and to return to Australia with drugs secreted in his luggage. The accused also relied on the fact that he had previously been a victim of a car accident where he sustained head injuries.  It was claimed that as a result of the accident he suffered serious cognitive impairment and that he was therefore particularly vulnerable to exploitation by others. 

8.  Because of the circumstances and state of his case, the accused was granted bail on 23 September 2015, subject to various conditions, including not to leave Hong Kong and to surrender all travel documents.  On 11 July 2016, bail was varied, allowing the accused to return to Australia where he was to reside at a particular address, and waiving his attendance at any other hearings save for the first day of trial.  The defendant confirmed and acknowledged the conditions of bail and gave an undertaking to surrender himself to the court when required.  The defendant signed the following confirmation and undertaking in the Extract of Record of Bail Proceedings:  

“I do confirm and acknowledge that I understand I am being admitted to bail on the conditions as stated in this extract and on my undertaking to surrender myself to the court at the time and date as stated in this extract to:

(i) answer (further) to the charge against me and to be (further) dealt with according to law; and

(ii) appear before such court as may then be sitting, namely, the *Magistrates’ Court/District Court/High Court/Court of Final Appeal for *plea, trial, sentence, appeal or otherwise as ordered by the court and/or when called upon.”

9.  It should be noted that the provisions for bail are governed by Part IA of the CPO.  Section 9L(1) provides that a person admitted to bail commits an offence if, without reasonable cause, he fails to surrender to custody at such time as shall have been appointed by the court. Section 9C provides that “admitted to bail” means the release by a court of a person from detention on his undertaking that he shall surrender to custody on the day that the court may appoint, and “surrender to custody” means appearing before the court on being called on the day as shall have been appointed by the court. 

10.  Later in the proceedings, the Prosecutions Division of the Department of Justice advised the legal representatives of the accused in a letter dated 9 November 2017 that on 16 November 2017, the adjourned date of the case, it would offer no evidence to the charge the accused faced.  In a letter of the same date, Mr McCoy, for the accused, indicated that the accused was impecunious and only had a limited source of income.  It was on this basis that he requested, and proposed, that the formality of terminating the proceedings against the accused be done in his absence.  This lead to the ruling I gave on 15 December 2017 and to the one that I now give.

The statutory provisions

11.  The relevant statutory provisions in relation to the arraignment of an accused are found in sections 49, 50, 51 and 51A of the CPO. So far as material the sections read as follows:

“49. Arraignment of accused person

(1) The accused person shall be placed at the bar unfettered and not in prison clothes, unless the court sees cause to direct otherwise.

(2) The indictment shall then be read over to him by the Registrar, and explained, if necessary, by the Registrar or the interpreter of the court; and he shall be required to plead instantly thereto, unless he objects to the want of due service of the indictment and notice of trial, and the court finds that he has not been duly served therewith.

(3) Where the accused person is a corporation, a plea in writing may be entered by its representative, and if either the corporation does not appear by a representative or, though it does so appear, fails to enter as aforesaid any plea, the court shall order a plea of not guilty to be entered and the trial shall proceed as though the corporation had duly entered a plea of not guilty.

(4) …”

“50. Effect of plea of not guilty

The accused person, on being arraigned, by pleading generally the plea of not guilty, shall, by such plea, without further form, be deemed to have put himself upon the country for trial.”

“51. Trial of offences

(1) If a person is arraigned on an indictment—

(a) he shall in all cases be entitled to make a plea of not guilty in addition to any special plea;

(b) he may plead not guilty to the offence specifically charged in the indictment but guilty to another offence of which he might be found guilty on that indictment;

(c) if he stands mute of malice, or will not answer directly to the indictment, the court may order a plea of not guilty to be entered on his behalf, and he shall then be treated as having pleaded not guilty.

…

(6) Subsections (1) and (2) shall apply to an indictment containing more than one count as if each count were a separate indictment.

…”

“51A. Entry of verdict of not guilty by order of judge

Where an accused person arraigned on an indictment pleads not guilty and the prosecutor proposes to offer no evidence against him, the court before which the accused person is arraigned may, if it thinks fit, order that a verdict of not guilty shall be recorded without the accused person being given in charge to a jury, and the verdict shall have the same effect as if the accused person had been tried and acquitted.”

Arraignment

12.  After the filing of an indictment, as a first, or preliminary, step in the progress of a trial is the arraignment.  This involves calling the accused person to the bar by name, reading out the count or counts on the indictment and asking the accused person whether he is guilty or not guilty of the count or counts.[3]

13.  If the accused person is on bail, he is called on to surrender to the custody of the court in order to be arraigned.[4] 

14.  If the accused person stands mute of malice or will not answer directly to the indictment, the court may order a plea of not guilty to be entered on his behalf, and he is then treated as having pleaded not guilty.[5] Otherwise, the accused person must enter a plea himself.  A plea of guilty must be entered by the accused person personally.  If counsel purports to plead guilty on behalf of the accused person, the purported plea has no validity and the proceedings constitute a mistrial.[6]  It is not sufficient for his counsel to do so on his behalf, or to indicate that the accused wishes to plead guilty.  An accused corporation on arraignment must appear by a representative if it wishes to avoid a plea of not guilty being entered on its behalf.[7] 

The accused’s submissions

15.  Mr McCoy submits that the accused is entitled to be absent from his formal arraignment in light of the prosecution’s indication that it would offer no evidence after his plea of not guilty to the count on the indictment of trafficking in a dangerous drug, resulting in his acquittal of the count. 

16.  He seeks to support this proposition by submitting that the common law allows an accused to be absent from his formal arraignment in the circumstances of the present case and that the relevant Hong Kong statutory provisions should be reconciled with the common law. 

17.  He also submits that the Court has an inherent jurisdiction to arraigned the accused by way of video link.

The common law

18.  In examining and stating the common law position on the subject, Mr McCoy relies on a series of cases.

(a) Arraignment where the accused is not in the custody of the court

19.  Mr McCoy argues that an accused may be arraigned without surrendering to the custody of the court.  In support of this argument, he relies on R v Central Criminal Court, ex parte Guney [1994] 2 All ER 423, where the court had to consider whether it was necessary for a defendant to surrender to the custody of the court before there was a valid arraignment.  In that case, the applicant acted as surety for the defendant.  In a preparatory hearing in the Crown Court the defendant was arraigned where he pleaded not guilty.  The agreement between the counsel for the prosecution and the defence was that it was not necessary for the defendant to surrender to the custody of the court.  The defendant then fled the country and the surety was ordered to forfeit the sum he had provided.  The defendant at his arraignment, did not surrender to the custody of the court because there was no dock, but as already noted he was present and pleaded to the counts he faced.  The court was therefore asked to determine whether the arraignment in those circumstances was effective.  

20.  The Court of Appeal held that it was not necessary for a defendant to surrender to the custody of the court before there could be a valid arraignment.  As explained by the Court, the purpose of arraignment was to establish whether a defendant accepted the jurisdiction of the court and whether, by reason of a plea of not guilty, there would be a trial by jury and the purposes of arraignment could be fully served without injustice or risk thereof to the defendant if he pleaded to the indictment without being required to surrender to the custody of the court. 

21.  In the course of his judgment, Ralph Gibson LJ stated at 431b-g that:

“…No authority is cited for the proposition that arraignment can only be validly conducted if the defendant is in the custody of the court. There is, in my judgment, no consideration of substantial justice necessary for the protection of a defendant which requires the law to be so stated.

Arraignment is an important step: our law requires that, for a plea of guilty, the plea must be stated by the defendant personally. It may not be uttered on his behalf by counsel: see R v Ellis (1973) 57 Cr App R 571 and R v Williams [1977] 1 All ER 874, [1978] QB 373. But if a plea of not guilty be uttered by counsel on behalf of the defendant; or if no plea is taken at all but the trial proceeds on the basis that the accused has pleaded not guilty, the error is to be regretted but does not necessarily vitiate the trial. Such formal requirements of a criminal trial are thus essential only where the form protects a substantive right: thus to permit a vicarious plea of guilty would be fraught with danger because injustice rather than justice would be the likely product of a principle which permitted delegated confessions of guilt: per Shaw LJ giving the judgment of the court in R v Williams [1977] 1 All ER 874 at 876-877, [1978] QB 373 at 378.

The purposes of arraignment can, in my judgment, be fully served without injustice or risk of injustice to the defendant if the defendant pleads to the indictment without being required to surrender to the custody of the court.  It is in the interests of convenience and of the saving of court time and of costs if it is possible in law for an arraignment to take place without surrender of the defendant to the custody of the court; because, as in the present case, such a rule will permit a preparatory hearing to commence under the statute without the need to obtain a new order for bail with the reinstatement of the recognisances of sureties.  Such a rule, moreover, gives rise, in my judgment, to no risk of injustice to sureties. … ”

22.  On reliance of this passage, Mr McCoy submits that the effect of an arraignment is that a defendant must personally state his plea, if it is one of guilty as it amounts to the ultimate example of self-incrimination.  He further submits that the intent of the courts is to prevent an injustice arising if there is a delegation of the confession of guilty which he says is understandable.  However, he argues that this requirement can be departed where the plea is one of not guilty.  He argues that in the present case there is no injustice or risk of injustice to the accused by having him arraigned in his absence, and that it would be in the interests of convenience to do so. 

(b) Arraignment where no plea is taken from the accused

23.  Mr McCoy argues that an arraignment may be waived where the plea is not guilty because this does not prejudice the accused. He relies on R v Williams (Roy) [1978] 1 QB 373 (CA) (Roy Williams) where a trial proceeded to verdict without arraignment.  The circumstances in that case were that the defendant appeared in court to answer an indictment where the clerk incorrectly entered in the court record that the defendant had pleaded not guilty.  The case was adjourned before another court, at which the defendant was present, where it was assumed that the defendant had already pleaded and therefore his case proceeded to trial.  It was held in that case that the absence of an arraignment did not vitiate the trial because no prejudice was caused in circumstances where the plea of not guilty was impliedly conveyed through conduct at trial.  

24.  While no arraignment had taken place in Roy Williams, the defendant was nevertheless present throughout the proceedings.  The Court of Appeal held that where a defendant intended to plead not guilty, he could either expressly or impliedly waive arraignment and proceed to trial.  The Court went on to note that although it was unfortunate that the defendant had not been asked to plead, it was implicit in the proceedings that the defendant had waived his right to plead not guilty personally and, accordingly, the defective arraignment had not invalidated the trial. 

25.  In Roy Williams, the Court had been taken to Edmund Davies LJ’s remarks in R v Ellis (1973) 57 Cr App R 571, that an accused of the offence charged should personally answer it in a case where the defendant was present but whose plea of guilty was vicariously offered or tacitly conveyed.  It was in that context that Shaw LJ, giving the judgment of the Court, said at 378F-H:

“… It is a plea which is self-incriminatory and self-incrimination cannot be vicariously accomplished. Any contrary view would be fraught with manifest dangers. Injustice rather than justice would be the likely products of a principle which permitted indirect delegated confessions of guilt.

No qualification of or deviation from the rule that a plea of guilty must come from him who acknowledges guilt is thus permissible. A departure from the rule in a criminal trial would therefore necessarily be a vitiating factor rendering the whole procedure void and ineffectual. The court so affirmed in Reg. v Ellis where counsel had assumed the function of pleading guilty on behalf of his client.

It does not seem to this Court, at any rate at the present day, that the same fundamental objection exists where a plea of not guilty is vicariously offered or tacitly conveyed.  It is difficult to conceive what possible prejudice to an accused person could derive from such a procedure.  Time was when the question might have given rise to substantial difficulties.” 

26.  And later at 379F:

“The dire consequences of non-observance of the ritual in pleading not guilty no longer threaten a person accused in an indictment. Insistence on an express plea of not guilty by the defendant himself is no longer a necessary safeguard of justice where that is the intended plea and where the ensuing proceedings are precisely what they would have been if the accused had himself made the plea in plain terms.”

27.  It should be noted that this case was not concerned with the question whether the defendant should be present when pleading not guilty to the charge, but rather whether the defendant should express a plea of guilty to the charge himself.

28.  Mr McCoy relies on the statement in that case that a defendant does not have to personally plead not guilty, but as already noted, it was made in the context of the defendant being present.  He submits however that because absence of arraignment does not cause prejudice where the plea is not guilty, the accused is not required to be arraigned in person. 

29.  He further notes that Roy Williams has been adopted in Hong Kong in R v Lam Hon-Cheung,CACC 167/1985, 29 August 1985, unreported, where it was realised during a voir dire hearing challenging the admissibility of a caution statement that the arraignment of the defendant had not been completed as then required.  It appears that at that time in Hong Kong it was a requirement that the jury be empanelled before addressing any issue arising in the trial as to the admissibility of any evidence.  This was later made possible by the enactment of section 41(3) of the CPO. 

30.  As explained by the Court of Appeal, counsel for the defendant had observed that the matter could be rectified the following day and that he would not seek to make anything of the point.  The trial judge took the view that the omission would not vitiate the trial provided no objection was raised and none had been taken.  The arraignment was completed and the jury was empanelled, after which the defendant was put in their charge and the trial proceeded.  Cons JA who delivered the judgment of the Court said:

“A similar position had arisen earlier in England: R v Williams. The facts are identical save that the absence of the arraignment was realised, not during the course of a preliminary issue as to the admissibility of evidence, but subsequent to the trial proper which had been fought out as though a plea of not guilty had been entered. The Court of Appeal, taking the view that it was abundantly clear that a plea of not guilty had been intended and had been tacitly conveyed to the prosecution and the Court by the conduct of the accused and his counsel, adopted principles suggested by commentaries from the United States of America and accepted that the right to be arraigned had been waived.”

31.  This case like Roy Williams was not a situation where the accused was not present when he was arraigned. 

32.  It is worthwhile noting that Cons JA explained that the provisions as to arraignment in England depend upon the common law, where in Hong Kong they are statutory.  He also explained when examining section 49(2), that the procedures as set out in that subsection seem to be directory rather than mandatory, “merely reducing the common law to statutory form without altering in any way its substance”.  However, he went out of his way to stress that the Court’s comments should not be taken as in any way encouraging the omission of the arraignment in any case.

33.  Mr McCoy, relying on Roy Williams, argues that different considerations apply to a not guilty plea compared to a guilty plea, and therefore there will be no material prejudice to the accused in being arraigned in his absence (or by video link) because the prosecution have indicated that they will offer no evidence against him.

(c) Trial proceeding in the absence of an accused

34.  Mr McCoy argues that the court has discretion to absent an accused from his arraignment.  He relies on several authorities that he submits are to the effect that the court has discretion to commence and continue trials where the accused is absent, whether due to absconding or illness.  In the cases cited, arraignment appeared to have occurred,[8] and the court instead was concerned with whether the trial itself could take place in the absence of the accused.

35.  He also submits that the court has discretion to allow counsel for the accused to enter a plea of not guilty on an accused’s behalf depending on the particulars of the case.  He contends that the cases to which he referred clearly indicate that a trial may proceed even in the absence of a defendant, for example where there is a genuine intermittent illness of the defendant, misbehaviour or where a defendant has absconded.  He further contends that the discretion extends to a situation where a defendant waives his right to be present at his trial and that it is not limited, except by the demonstration of good and sufficient circumstances.

36.  In support of his contentions, Mr McCoy placed particular reliance on the judgment of Lord Bingham of Cornhill in R v Jones (Anthony) [2003] 1 AC 1.  

37.  The issue before the House of Lords in that case was whether it was unfair to a defendant for a trial to commence and continue in his absence after he had absconded.  Concluding it would not, Lord Bingham of Cornhill said:

“12 Considerations of practical justice in my opinion support the existence of the discretion which the Court of Appeal held to exist. To appreciate this, it is only necessary to consider the hypothesis of a multi-defendant prosecution in which the return of a just verdict in relation to any and all defendant is dependent on their being jointly indicted and jointly tried. On the eve of the commencement of the trial, one defendant absconds. If the court has no discretion to begin the trial against that defendant in his absence, it faces an acute dilemma: either the whole trial must be delayed until the absent defendant is apprehended, an event which may cause real anguish to witnesses and victims; or the trial must be commenced against the defendants who appear and not the defendant who has absconded. This may confer a wholly unjustified advantage on that defendant. Happily, cases of this kind are very rare. But a system of criminal justice should not be open to manipulation in such a way.”

38.  Prior to these remarks, Lord Bingham of Cornhill had reviewed the common law position in relation to a trial proceeding in the absence of an accused which was under challenge.  He said:

“6 For very many years the law of England and Wales has recognised the right of a defendant to attend his trial and, in trials on indictment, has imposed an obligation on him to do so. The presence of the defendant has been treated as a very important feature of an effective jury trial. But for many years, problems have arisen in cases where, although the defendant is present at the beginning of the trial, it cannot (or cannot conveniently or respectably) be continued to the end in his presence. This may be because of genuine but intermittent illness of the defendant (as in R v Abrahams (1895) 21 VLR 343 and R v Howson (1981) 74 Cr App R 172); or misbehaviour (as in R v Berry (1897) 104 LT Jo 110 and R v Browne (1906) 70 JP 472); or because the defendant has voluntarily absconded (as in R v Jones (Robert) (No 2) [1972] 1 WLR 887 and R v Shaw (Elvis) [1980] 1 WLR 1526). In all these cases the court has been recognised as having a discretion, to be exercised in all the particular circumstances of the case, whether to continue the trial or to order that the jury be discharged with a view to a further trial being held at a later date. The existence of such a discretion is well established, and is not challenged on behalf of the appellant in this appeal. But it is of course a discretion to be exercised with great caution and with close regard to the overall fairness of the proceedings; a defendant afflicted by involuntary illness or incapacity will have much stronger grounds for resisting the continuance of the trial than one who has voluntarily chosen to abscond.

7 In R v Abrahams 21 VLR 343, 347 William J opined that if an accused person failed to appear at trial and was found, when the trial came on, to have absconded, he had clearly waived his right to be present and the prosecution might elect to go on with the trial in his absence; in such event, the judge would exercise his discretion whether to allow the trial to continue, paying particular attention to whether the defendant was represented.  But those were not the facts of that case, and these observations must be treated as obiter.  It was not until 1991 that the lawfulness of commencing a trial on indictment in the absence of the defendant came before the court as a matter for decision.  It may well be that the more restrictive approach taken in earlier days towards the bailing of defendants charged with serious offences helped to ensure that such defendants did appear at their trials.  The mandatory terms of the Bail Act 1976 have led to the grant of bail even to defendants, such as the appellant, who might well be thought suitable subjects for custodial restraint pending trial.  Be that as it may, the issue fell to be decided in R v Jones, Planter and Pengelly [1991] Crim LR 856.  In that case three defendants stood trial charged with a number of offences, but after some days two of the defendants, who were on bail, absconded and the recorder aborted the trial against all three defendants and discharged the jury.  When the case was listed to be tried on a second occasion, one defendant appeared and the other two did not.  The trial judge ordered that the trial should begin against the absent defendants as well as the defendant who was present, and on appeal it was argued that he should not have begun the trial against the absent defendants.  That contention was rejected.  As appears from the transcript of the judgment of Lord Lane CJ, giving the judgment of the court, it was held to be quite plain in principle that there was a discretion in the judge to order a trial to continue, or indeed to start, not only where a person had voluntarily absented himself but also, as Griffiths LJ had held in R v Howson 74 Cr App R 172, where he had been involuntarily absent.  A similar ground of appeal was advanced, unsuccessfully, in R v Donnelly (unreported) 12 June 1997 (Court of Appeal (Criminal Division).  The House must now decide whether it should overrule this authority as being inconsistent with Strasbourg jurisprudence, or contrary to principle, or apt in practice to work injustice.  Counsel for the appellant submits that the authority should be overruled on all those grounds.”

39.  Mr McCoy argues that Lord Bingham’s comments in Roy Williams about “considerations of practical justice” support the court having a discretion to commence trials in the absence of the accused.  He submits that if it is in the interests of practical justice that a plea of not guilty be entered on behalf of an absent accused who has absconded before trial commences, then it is similarly in the interests of practical justice to not require the presence of an accused where they intend to plead not guilty and the prosecution intends to offer no evidence, such that the case is then immediately terminated. 

40.  In oral submissions, Mr McCoy recognised that Roy Williams was factually distinct from the present case in two respects. First, despite the failure to conduct a formal arraignment, the accused in Roy Williams was present throughout the trial.  Secondly, the question of the failure to arraign in Roy Williams only arose once the trial had concluded, and was relevant to whether the trial should be vitiated. Nevertheless, he submits that the principle in Roy Williams,that the failure of an accused to personally plead not guilty at arraignment was not prejudicial, should be extrapolated to the present circumstance where the prosecution intended to offer no evidence.

(d) Appeal proceeding in the absence of an accused

41.  Mr McCoy also relies on R v Okedare [2014] 1 WLR 4071, where it was held that a convicted accused’s counsel may seek leave to appeal even though the accused had absconded.  This is a distinct issue. 

42.  In that case, the subject matter of the appeal was whether there was jurisdiction to make a confiscation order under a specific provision of the Proceeds of Crime Act, 2002, against a defendant who had absconded.  The Court noted that an appeal might proceed without the accused in circumstances where either the accused’s counsel had implied authority to bring the appeal (for example, if authorised to act in their client’s best interests), or because the court has inherent discretion or power to allow an appeal even in the absence of counsel possessing authority because it is in the interests of justice to correct an unlawful sentence. 

43.  It would appear that because the accused had absconded, he was treated as having waived his right to be arraigned and a not guilty plea was entered.  It was not an issue before the Court of Appeal that the trial was conducted against the accused in his absence without being arraigned. 

The statutory provisions

44.  In his submissions on section 51A, Mr McCoy argues that the section should be reconciled with the common law, as reflected by the cases to which he has referred, and therefore an arraignment in person is not required.  He adds that the common law does not regard the act of counsel entering a plea of not guilty on the accused’s behalf as giving rise to prejudice.

45.  In his later submissions, Mr McCoy does not question the need for an arraignment, but instead focuses on the means by which arraignment may occur.  In his written submissions, he states that:

“The accused is not challenging the fact that an arraignment is required in this case. The accused is asking the court to dispense with the need for the accused to be physically present at the arraignment, as the prosecution will offer no evidence.”[9]

46.  He submits that in the specific circumstance addressed by section 51A — namely, where an accused intends to plead not guilty and the prosecution intends to offer no evidence — arraignment may be conducted without the physical presence of the accused, with the accused’s counsel entering a plea of not guilty on the accused’s behalf.  He also submits that in principle, this should not only apply in the present case where the accused is overseas and said to be impecunious, but even to individuals of ample means residing in Hong Kong.

47.  In support, Mr McCoy contends that section 51A should be given a remedial interpretation, reflecting its purpose of ensuring an efficient process by avoiding the unnecessary empanelling of a jury where the prosecution intends to offer no evidence.  Not requiring an accused to be personally arraigned would be consistent with this provision’s efforts at bringing proceedings to an immediate halt without unnecessary expense where the prosecution intends to offer no evidence.

The court’s inherent jurisdiction

48.  In his later written submissions, Mr McCoy argues that the court has an inherent jurisdiction outside the statutory provisions for the taking of evidence by live television link to permit the arraignment of the defendant by video link.  Mr McCoy argues that the inherent jurisdiction is a broad doctrine which allows the court to control the shape or create its own processes to ensure convenience and fairness in legal proceedings. 

49.  He distinguishes between a witness giving evidence by live television link to a defendant being arraigned on the basis that the proceedings against him will be terminated.  He referred to a recent example of this taking place in the United Kingdom which was reported by the Guardian newspaper on 12 March 2018.  It concerned an English cricketer, Ben Stokes, who pleaded not guilty before a court in Bristol via video link from New Zealand.  Without knowing more, it is difficult to discern on what basis it was done and whether the court invoked its inherent jurisdiction as seems to be suggested by Mr McCoy in his written submission.

50.  As I have noted in my previous ruling, there are specific statutory provisions to facilitate the transmission of proceedings by live television link.  Those provisions are limited to the taking of evidence from witnesses.  Even if the court’s inherent jurisdiction allowed the arraignment of an accused by live television link, I would not permit it in the circumstances of the present case.

The prosecution’s submissions

51.  Mr Neil Mitchell, for the prosecution, argues that in light of the facts of the accused’s case, he can harbour no sense of grievance or injustice if he is now required to return to Hong Kong to have his case dealt with in accordance with the law. 

52.  He submits that no authority is cited by the accused which supports the proposition that an accused need not be physically present for the purpose of the court making an order under section 51A. 

53.  He further submits that the relevant statutory provisions are clear and unambiguous, and the law cannot be circumvented as a matter of convenience.  He points out that section 51A provides that where an accused person “arraigned on an indictment” pleads not guilty, “the court before which the accused person is arraigned” may order a verdict of not guilty.  It follows therefore that the arraignment of the accused person is a prerequisite to the power of the court to make an order under this section.  He further points out that the section does not make the order mandatory upon the prosecution proposing to offer no evidence, and hence a court may well take a contrary view, and refuse to make an order such that the accused person would have to be given in charge to the jury.

54.  Mr Mitchell accepts that in certain circumstances where an accused has failed to appear on the trial date in answer to his bail, the court may proceed to hear the trial in his absence.  As noted by him, R v Hayward sets out the principles that a court should follow before it allows a trial to proceed in absentia one of which being that the discretion of the court must be exercised with great care and only rarely should a trial continue in the absence of an accused especially if he is unrepresented.[10] A typical situation is where an accused has absconded and the court is therefore satisfied that he has by his conduct waived his right or chosen not to be present for his trial and to be legally represented.  The court in exercising its discretion, fairness to the accused was of prime importance but account also had to been taken of fairness to the prosecution and the general public interest. 

55.  Mr Mitchell argues that the statutory provisions require the physical presence of an accused at his arraignment and that an accused cannot be arraigned through counsel.  He contends that section 51A only applies if an accused is personally arraigned.  He seeks to imply this requirement into the definition of arraignment from the statutory context, particularly section 49.  First, section 49(1) provides that “the accused shall be placed at the bar unfettered and not in prison clothes, unless the court sees cause to direct otherwise”.  The reference to being “placed at the bar” he argues necessarily requires an accused should be personally present at arraignment.  Secondly, section 49(2) provides that “[t]he indictment shall then be read over to him”.  This similarly suggests that an accused should be personally arraigned.  Thirdly, he argues that because section 49(3) expressly permits a corporation to enter its plea by representative, the absence of such a provision in respect of natural persons indicates that the same option is not available to them.  He notes that under section 18 of the Magistrates Ordinance, Cap 227, an accused can be represented by counsel in his absence, but there is no equivalent provision under the CPO. 

56.  In reply to the prosecution’s argument about section 49(3), Mr McCoy submits that it could not be inferred from the fact that there was express provision for corporations to plea by a representative that this was not available to natural persons.  Entering a plea through a representative is the only way a corporation can ever plea, which explains why express provision is only made for this circumstance.  Whilst there is force in Mr McCoy’s submission on section 49(3), the wording of sections 49(1) and (2) indicate that the accused must answer personally to the indictment, and it still remains that there is no express provision for a natural person to enter a plea by his representative or elect not to appear. 

57.  Mr Mitchell accepts that in Lam Hon-cheung, Cons JA expressed the view that the provisions under section 49 were directory rather than mandatory, but stresses that as it is required that the accused shall be placed at the bar, there would have to be good and sufficient reason for departing from the requirements and procedure under section 49.  He refers to sections 45 and 46 of the CPO which address the issue of “default of appearance”, providing the court with the power to estreat bail and to issue a warrant for arrest. 

Discussion

58.  Mr McCoy’s settled position in relation to this application as stated his most recent written submissions dated 16 March 2018 is as follows:

“8. The accused submits that where the prosecution decides to Offer No Evidence against an accused, the Court has the following options available to it:

(1) Exercise its inherent jurisdiction to permit an accused to say the three words “Plead Not Guilty” via Live Television Link (as was permitted in Mr. Stoke’s case);

(2) Adopt the common law position of permitting Counsel for the accused to enter a plea of not guilty on his behalf, in his absence;

(3) Exercise its statutory powers under s51 and s51A and the Court itself, enters a plea of not guilty (by adopting a purposive approach to interpretation, without altering the common law position).

9. Therefore, it would be (1) in the interest of justice; (2) practical; (3) save time; (4) save costs and (5) results in fairness to both parties to adopt any of the three methods stated above. The Court will note that the accused’s position is that the above options are open to the Court, where it has to decide the narrow issue of “Whether the physical presence of a natural person accused is required at that person’s arraignment where the prosecution intends to offer no evidence against that person?” Therefore the answer to the question is “No”.”

59.  Whilst there is initial attraction to Mr McCoy’s argument, the issue is by no means straightforward, and the authorities that he cites need to be carefully examined to understand exactly the principle or principles they espouse when weighing considerations of public policy which require that the accused be present at his trial against the desire of the accused to be absent and his reasons for doing so. 

60.  Understandably, Mr McCoy relies heavily on the fact that the prosecution has indicated that it would offer no evidence to the charge that has been laid against the accused after he has pleaded not guilty to it.  But this fact alone is not enough, bearing in mind the important legal requirements and obligations that are imposed on an accused in criminal proceedings brought against him. 

61.  In the present case, the accused was charged with the serious offence of trafficking in dangerous drugs.  He was intercepted at the Hong Kong International Airport on 3 March 2015 before taking a flight to Australia with 2,988 g of a crystalline solid, containing 2,960 g of Ice which was secreted in his check-in luggage.  Even though the prosecution has now decided not to proceed against him on that charge, he was nevertheless charged and brought before the courts in justifiable circumstances.  He was eventually granted bail on conditions that he confirmed and acknowledged, and on his undertaking that he would surrender himself to the court to answer to the charge against him and to appear before the court for trial as ordered or called upon. 

62.  It is claimed that the accused is impecunious and he is therefore unable to attend his arraignment.  Mr Mitchell rightly asks the rhetorical question: What would have happened if the trial against the accused had proceeded? 

63.  The accused was allowed to leave the jurisdiction by order of the court on condition and on his own undertaking that he would surrender himself to the custody of the court when required.  Even though there has been a change of circumstances, and whilst from a practical point of view it may be considered convenient to have him enter a plea of not guilty through counsel or via video link, there are other important considerations that need to be taken into account.  

64.  As noted by Lord Bingham of Cornhill in Jones,the law has recognised the right of an accused to attend his trial and, in trials on indictment, has imposed an obligation on him to do so.  There is both a right and an obligation.  The right is recognised at common law and is also protected under the Basic Law.[11]  The obligation should not be overlooked or understated.  The presence of an accused has been treated as a very important feature of an effective jury trial.  There may be exceptional circumstances where a court exercises its discretion and proceed with the trial in the absence of the accused.  It is in those circumstances where considerations of practical justice had been mentioned by Lord Bingham of Cornhill to support existence of such a discretion.  It arises in circumstances due to illness of the accused, or misbehaviour, or because of the accused has voluntarily absconded. 

65.  Hong Kong is an international and regional centre that receives a substantial number of transient visitors, and has experienced serious crime with an international element.  There have been cases in the past because of Hong Kong’s geographical size and location where persons accused or charged with serious crime have absconded from the jurisdiction.  The provisions for admitting an accused to bail permit a court to impose conditions as are necessary to secure that the accused will not fail to surrender to custody as the court may appoint.  There is an important public policy consideration of ensuring an accused abides by a court’s order and surrenders himself to custody as required. 

66.  Mr McCoy has framed the issue that I have to decide in circumstances where the prosecution offers no evidence against the accused.  He submits that the options available to the Court is (1) to exercise its inherent jurisdiction to permit an accused to be arraigned via video link; (2) to adopt the common law position permitting counsel to enter a plea of not guilty for the accused in his absence; and (3) exercising its statutory powers under sections 51 and 51A by remedial interpretation of the statutory provisions, adopting the common law position. 

67.  The answer to Mr McCoy’s propositions are as follows.  As to (1), there are statutory provisions in place that govern the arraignment of an accused and in those circumstances the court is bound by them.  As to (2), the common law position does not appear to permit counsel for the accused to enter a plea of not guilty on his behalf in his absence.  The relevant authorities where a plea is vicariously offered or impliedly conveyed is in circumstances where the accused is present.  As to (3), the statutory provisions are clear and unambiguous and require the personal attendance of an accused at his arraignment.  Even upon a consideration that the statutory provisions are directory, the circumstances of the present case do not justify excusing the accused from being present at his arraignment.

68.  To the foregoing, I would add that there are strong public policy considerations that an accused personally attend his arraignment because of Hong Kong’s special circumstances and local conditions as an international city with transient visitors, and the issue of ensuring the attendance of an accused at his trial.  Of particular consideration in the present case is that the accused has been granted bail to leave the jurisdiction but on condition and on his personal undertaking that he would return to the jurisdiction on a court appointed date. 

69.  The relevant statutory provisions in relation to the arraignment of the accused provide in clear and unambiguous terms that an accused person be present at the bar where the indictment is to be read over to him and he is to plead to the charge or charges.  See sections 49 and 51A of the CPO.  There is an obligation on the accused to be present at his arraignment.  There is also an obligation on the accused who is on bail to surrender to custody on the court appointed date.

70.  I am of the view that the circumstances of the present case do not justify the Court exercising its discretion to proceed to have the accused arraigned in his absence.  

Conclusion

71.  The accused in the present case was properly charged and brought before the Court.  An indictment was filed against him charging him with an indictable offence.  He was granted bail which allowed him to return and reside in Australia but on condition and on his undertaking to return to Hong Kong for trial.  Strict adherence to the legal obligations on an accused by statute or court order is fundamental to the administration of justice.  There are no exceptional or extenuating circumstances in the present case that do not require the physical presence of the accused at his arraignment. 

72.  In light of the foregoing, the application is therefore refused.