HKSAR v. ECHENE MATHIAS (ALSO KNOWN AS ECHENE MATHIAS HUBERT MARIE)

DCCC 1029/2012

[2020] HKDC 876

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1029 OF 2012

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REASONS FOR DECISION

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1.  This was an application by the prosecution for the trial herein which is due to commence on 23 November 2020 with 25 days reserved to proceed against both the 1^st defendant (D1) and the 2^nd defendant (D2) at the same time even if D2 is absent from the trial.

2.  D1 and D2 were arrested on 2 June 2012.  They were jointly charged with one count of dealing with property known or believed to represent the proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap. 455.

3.  The charge against D1 and D2 was transferred to the District Court on 27 November 2012.  They pleaded not guilty.  Their trial was set down to be heard on 14 February 2013 with 20 days reserved.  Upon application by the two defendants, the trial was re-fixed to be heard on 10 October 2013 with 25 days reserved.  Both defendants failed to attend the trial as scheduled.  Warrants of arrest were issued against them.

4.  D1 was subsequently arrested in Indonesia.  He was extradited back to Hong Kong on 12 September 2019.  After several hearings in the District Court, D1 maintained his not guilty plea.  The trial against D1 will commence on 23 November 2020.   

5.  Up to this moment, D2 is still at large.  The prosecution applied for the trial herein to proceed also against D2 in her absence.

6.  According to Mr. Duncan Percy, counsel for D1, in his letter dated 19 October 2020, D1 did not oppose the application.

7.  By an order made on 20 October 2020, this court granted the application by the prosecution, but added the qualification that the ultimate decision was to be made by the trial judge at the commencement of the trial.  Here are the reasons for the decision.

The Prosecution Case

8.  According to the particulars of the Charge, it is alleged by the prosecution that between 22 August 2006 and 17 September 2007, D1 and D2 dealt with the total sum of US$4,276,563.65 when they knew or had reasonable ground to believe that such property in whole or in part, directly or indirectly, represented the proceeds of an indictable offence.

9.  The facts alleged by the prosecution are contained in the Summary of Facts dated 14 November 2012 and the letter dated 15 October 2020 from Mr. Felix Tam, Senior Public Prosecutor, together with a brief summary of evidence of prosecution witnesses prepared by Detective Senior Inspector Ngai Chun Kit, Ronald.  It is not necessary to set out the alleged facts in full.  The gist is as follows.

10.  D1 and D2 are husband and wife.  They were at the material times the proprietors of a developer known as “Absolutelybali HK Ltd” (“Absolutelybali”).  Absolutelybali maintained a bank account in Hong Kong with D1 and D2 as its authorized signatories.

11.  In 2006, D1 and D2 invited the alleged victims who were their social acquaintances to invest jointly with them in two property projects in Bali, Indonesia, namely, the Pantai Lima Project and the Soka Project.  The alleged victims agreed.

12.  The Pantai Lima Project was a 5-share property development.  The investors of this Project were D1 and D2 (counting as one share), Mr. Lauret Paul LAUTIER (PW1), Mr. David Raphael CUKIEMAN (PW2), Mr. Charles Raphael JOORY (PW3) and Mr. Randovan V-TEK.

13.  In the Pantai Lima Project, the 5 investors would acquire land in Bali and build 5 villas thereon so that upon completion of the Project, each investor would own one villa.  The 5 investors agreed to share the land cost and the building cost equally.  PW1, PW2, PW3 and Mr. V-TEK also agreed that they would each pay consultancy fees in the sum of US$50,000 to Absolutelybali which was responsible for managing the whole project.  They would not be required to pay any other fees or expenses to either Absolutelybali, D1 and/or D2.

14.  The Soka Project was a 3-share property development.  The investors of this Project were D1, PW3 and Mr. V-Nee YEH (PW5).  In this Project, the investors would acquire a piece of beachfront land and decide upon its development after the land acquisition. The investors agreed to contribute equally to the cost for acquiring the land.

15.  The respective investors of the two Projects had paid various sums of money into the bank account of Absolutelybali in Hong Kong upon the 8 to 9 fund drawdown requests made by the Defendants pursuant to their respective investment agreements with D1 and D2.

16.  Mr. V-TEK subsequently withdrew from the Pantai Lima Project.  His share was taken up by PW3, D1 and another investor called Frederick.  Pursuant to the investment agreement, two parcels of land were purchased and 5 villas were built on the land so acquired by D1 and D2.  The Pantai Lima Project was completed in June 2008.  The investor or investors of each share of the Project now owns one of the 5 villas.

17.  One parcel of beachfront land was acquired by D1 for the Soka Project.

18.  The prosecution case against D1 and D2 is that they had falsely represented to the co-investors of the Pantai Lima Project the amount of land cost and building cost actually incurred, and to the co-investors of the Soka Project the amount of land cost actually incurred, thereby overcharging the amount of contribution payable by each co-investor pursuant to their respective investment agreements, and that after the co-investors had paid their contributions into the bank account of Absolutelybali in Hong Kong in compliance with the fund drawdown requests made by D1 and D2 as a result of their deception, D1 and D2 dealt with the money in that bank account, knowing or having reasonable ground to believe that such money in whole or in part was the proceeds of an indictable offence, namely, their deception upon their co-investors who discovered the deception only in 2012.

The Applicable Legal Principles

19.  The legal principles applicable to trial in the absence of a defendant have been enunciated in a number of local and overseas cases including but not limited to R v Hayward[1], R v Jones (Anthony William)[2], HKSAR v Kwan Wai Keung[3], HKSAR v Singh Gursewak[4], and HKSAR v Chow Ho Yin[5], and can be summarized as follows:

(1) The right of a defendant to be present at his trial under Article 11(2)(d) of section 8 of the Hong Kong Bill of Rights Ordinance (Cap. 383) was part of a broader right to a fair trial under Article 87 of the Hong Kong Basic Law and Article 10 of the Hong Kong Bill of Rights.  The presence of a defendant allows him to see and hear the case against him, confront his accusers, give prompt and continuous instructions to his legal representatives, and place psychological pressure on witnesses to tell the truth.  The defendant has also a right to be legally represented at trial. 

(2) These are not absolute rights, and 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, the defendant deliberately and voluntarily absents himself and/or withdraws instructions from those representing him.

(3) The trial judge has a discretion to allow a trial to take place or continue in the absence of a defendant and/or his legal representatives in appropriate circumstances.

(4) That discretion must be exercised with great care and caution, and it is only in rare and exceptional cases that it should be exercised in favour of a trial taking place or continuing in the absence of the defendant, particularly if he is unrepresented.

(5) In exercising that discretion, fairness to the defence is of prime importance but fairness to the prosecution must also be taken into account. 

(6) The judge must have regard to all the circumstances of the cases including but not limited to the following:

(a) Is the defendant’s absence voluntary or involuntary?  Where the defendant is absent because of illness, the absence is generally treated as involuntary.

(b) Has the defendant waived the right to be present at his trial?  This is a question of fact to be determined in all the circumstances of the case.

(c) Would an adjournment resolve the problem of the defendant’s absence?  If so, would the adjournment required be short or long?  Would the adjournment impact negatively on the conduct of the trial such as the effect of delay on the memory of witnesses?

(d) Is the defendant legally represented?  If so, to what extent are his legal representatives able to receive and act upon instructions in his absence?

(e) Has the defendant waived his right to legal representation?  Would the defendant be prejudiced by his absence, having regard to the nature of his defence and the evidence against him, and his unavailability to give evidence at trial?

(f) Would there be a risk of the jury reaching an improper conclusion about the defendant’s absence?

(g) Where there is more than one defendant but not all have absconded, would it be undesirable to have separate trials?  Would the prospects of a fair trial for the defendant who is present be adversely affected?

(7) The factors listed above are not exhaustive or conclusive, and a judge must consider all the relevant circumstances of each case in deciding how to exercise his discretion.

(8) 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 and lead to a just outcome.  He must take reasonable steps, both during the giving of evidence 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. The judge shall warn the jury that absence is not an admission of guilt and adds nothing to the prosecution case.

Chronology of Relevant Events

20.  Mr. Felix Tam, Senior Public Prosecutor, has provided a Chronology of Events in his written submissions.  Reference is also made to the records and documents in the court file including the transcripts of the court hearing on 10 October 2013 when the two defendants failed to appear in court, as well as the two affidavits both sworn on 24 October 2013 by Mr. Francis Charles Ferrand and by his wife Mrs. Anne Laure Ferrand.  Mr. Ferrand had undertaken the duties of a surety to ensure D1 and D2 to surrender to custody on 10 October 2013.  Mr. Ferrand filed these two affidavits to show cause as to why the court should not forfeit his surety monies.  In addition, the prosecution has filed two affirmations both affirmed on 28 September 2019 by Detective Police Constable Yip Long Yin and Detective Senior Inspector Ngai Chun Kit Ronald.  Both of them testified to how they attempted to contact D2 with a view to notifying her that the trial might proceed against her in her absence but in vain.  Inspector Ngai also provided an update on the age, health condition and whereabouts of the 14 prosecution witnesses. 

21.  It suffices for the present purpose to recite the following relevant events:

(a) D1 and D2 were arrested on 2 June 2012.

(b) On 27 November 2012, D1 and D2 pleaded not guilty in the District Court, and their trial was fixed to be heard on 14 February 2013 with 20 days reserved.

(c) On 8 February 2013, i.e. less than one week before trial, D1 and D2 jointly applied for an adjournment of the trial on the ground that their expert was in the course of preparing an accountant report, and that a defence witness was not available.  The application was granted with the trial re-fixed to be heard on 10 October 2013 with 25 days reserved.  In this application for adjournment, D1 and D2 were represented by Mr. Daniel Marash S.C., together with Mr. Derek Chan of Counsel upon the instructions of Messrs. Haldanes.

(d) For all other hearings in the District Court prior to 10 October 2013, including hearings on 27 November 2012, 14 December 2012, 15 January 2013, 25 June 2013 and 3 October 2013, D1 and D2 were also represented by the same firm of solicitors, i.e. Messrs. Haldanes. 

(e) D1 and D2 were bound by their bail terms to surrender to court on 10 October 2013.  Each of them had deposited HK$1 million cash as bail money.  Mr.  Ferrand had undertaken the duties of a surety and deposited HK$500,000 cash for each of D1 and D2 to fortify his undertaking to ensure D1 and D2 to surrender to court on 10 October 2013.  D1 and D2 were once not allowed to leave Hong Kong, but the travel prohibition was eventually removed from their bail terms.

(f) Before 10 October 2013, D1 last entered Hong Kong on 1 September 2013 and left on the same day. 

(g) Before 10 October 2013, D2 last entered Hong Kong on 28 September 2013, and left on 7 October 2013.  During her stay in Hong Kong, Mrs. Ferrand met D2 almost every day.  On 7 October 2013, Mrs. Ferrand accompanied D2 to consult a doctor to deal with D2’s sleeping problem and to see Mr. Tom Fyfe of Messrs. Simmons & Simmons, Solicitors, to discuss the imminent trial on 7 October 2013.  Mrs. Ferrand last spoke to D2 on the phone around 7 p.m. on 7 October 2013.  D2 however left Hong Kong without prior notification to Mr. or Mrs. Ferrand.

(h) About 3 p.m. on 8 October 2013, Mr. Ferrand learned from his friend in Paris that D2 was back in Paris.  He later managed to speak to D2 over the phone.  D2 told him that she was scared and frightened by the predicament that she was facing in Hong Kong.  Mr. Ferrand also managed to speak to D2’s mother.  He asked D2’s mother to persuade D2 to return to Hong Kong.

(i) Around 4:03 p.m. on 8 October 2013, D2 sent a text message to Mrs. Ferrand to tender her apology.  D2 claimed that she would like to fight and clear her name but it had become impossible because D1 was not present.  She said that if Mrs. Ferrand were her, Mrs. Ferrand would have made the same decision as she.

(j) Mrs. Ferrand sent text messages to D2 on 8 October 2019 at 10:59 p.m. and on 9 October 2013 at 3:48 p.m. to urge D2 to return to Hong Kong and not to live the life of a fugitive. 

(k) D2 replied by text message on 10 October 2013 at 3:25 a.m. saying that she had to disappoint Mrs. Ferrand.

(l) On 10 October 2013, both D1 and D2 did not attend the trial, but they were legally represented.  Mr. Derek Chan of Counsel instructed by Messrs. Oldham, Li & Nie, Solicitors, appeared for D2 on limited instructions to apply for an adjournment of the trial to January 2014.  Mr. Derek Chan produced to court a letter dated 9 October 2013 written by D2 who claimed in the letter that she was returning to France to take care of her 4 years old daughter who was then suffering from acute tonsillitis, and had to undergo a surgery upon the advice of a specialized doctor.  D2 also stated in the letter that she intended to return to Hong Kong on or around 15 January 2014, and that she had made herself available by phone for the police to contact her whenever needed.  Miss Liza Yip of Counsel instructed by Messrs. Wong & Associates, Solicitors, appeared for D1 also with limited instructions to apply for an adjournment of the trial.  His Honour Judge Johnny Chan refused the defendants’ applications for adjournment and issued warrants of arrest against them.  The learned judge also ordered the cash bail of each defendant (totalling HK$2 millions) to be forfeited. 

(m) On 4 November 2013, after Mr. Ferrand had showed cause as to why his surety monies should not be forfeited, His Honour Judge Johnny Chan ordered half of the surety monies for each defendant (i.e. HK$250,000 each) to be forfeited. Mr. Ferrand therefore had lost HK$500,000 in total.

(n) Between 23 July 2020 and 15 September 2020, Detective Police Constable Yip Long Yin made 6 attempts to contact D2 by phone with a view to notifying her that the prosecution intended to apply for the trial to proceed against her in her absence.  Constable Yip called the phone number left by D2 with the police for contact and recorded in D2’s antecedent statement.  All the calls made by Constable Yip could not be connected.

(o) Detective Senior Inspector Ngai Chun Kit Ronald sent 4 emails to D2 notifying her that the prosecution intended to proceed with the trial against her in her absence, 3 of the emails were sent to the Gmail account of D2 on 23 July 2020, 11 August 2020 and 15 September 2020, and the last email was sent to the Hotmail account of D2 on 25 September 2020. Police enquiries revealed that D2 had used these email accounts to communicate with some of the alleged victims.  D2 had not replied to any of the emails sent by Inspector Ngai.

Application of the law to the Case of D2

22.  It is clear beyond doubt that D2 knew full well that she had to appear in court on 10 October 2013 when the trial against her and D1 would commence.  She was present in court on 8 February 2013 when the trial was re-fixed to be heard on 10 October 2013 after her application for adjournment of the trial due to start on 14 February 2013 was granted.  It is also clear from the affidavit of Mrs. Ferrand that she had been reminding D2 to come to Hong Kong to attend her trial on 10 October 2013.  When D2 was in Hong Kong between 28 September and 7 October 2013, Mrs. Ferrand stayed with her almost every day, and accompanied her when she consulted Mr. Tom Fyfe of Messrs. Simons & Simmons for preparation of the imminent trial.  In addition, D2 actually instructed Mr. Derek Chan of Counsel and Messrs. Oldham, Lie & Nie, Solicitors, to appear for her on 10 October 2013 to apply for adjournment of her trial.

23.  D2’s absence in court on 10 October 2013 is again beyond dispute.  Her absence was clearly voluntary because she had made a deliberate decision to depart from Hong Kong on 7 October 2013 at night.  In the text messages between D2 and Mrs. Ferrand, D2 sought to explain why she had left Hong Kong.  She said she felt that it would be unfair for her to shoulder all the responsibilities when D1 would not stand for his trial.  It is noted that her explanation of her absence to Mrs. Ferrand did not tally with what she told the court in her letter dated 9 October 2013 when she said she had to return to France to take care of her 4 years old daughter who was at that time suffering from acute tonsillitis and had to receive a surgery.  It is also noted that while D2 said that she felt very apologetic to Mrs. Ferrand for making her decision to leave Hong Kong, she chose not to listen to Mrs. Ferrand who advised her that nobody could live an entire life as a fugitive and urged her to return.

24.  It is also beyond doubt that from 10 October 2013 onwards, D2 has no initiative whatsoever to return to Hong Kong to stand for her trial.  In her letter dated 9 October 2013, D2 claimed that she intended to return to Hong Kong on or around 15 January 2014.  She did not honour that promise. It can also be safely inferred that she was well aware that her application for adjournment of her trial failed and that the court had issued a warrant of arrest against her because her legal representatives must have the means to contact D2 on 10 October 2013 even if D2 was outside Hong Kong, and they must have informed her of the decisions made by His Honour Judge Johnny Chan after the hearing.  Since 10 October 2013, D2 has not made any attempt to contact either the police or the court, not to mention that she has never surrendered herself.

25.  It is also clear that it is not possible to tell at this stage when D2 can be located.  In other words, even if the trial against D2 is to be deferred, the possibility of securing her presence in court within a reasonable period of time is slim and may even be non-existing.

26.  On the other hand, because of the risk of losing some witnesses who are or may be required by the prosecution and/or the defence to give material evidence on the issues to be decided at trial, it constitutes a good reason why the trial against D2 should now proceed together with the trial against D1. 

27.  According to the affirmation of Inspector Ngai, the prosecution has already lost one prosecution witness, i.e. Ms Emiko KOJIMA (PW8) who was the director of a property investment company in Indonesia and was involved in acquisition of land for the Pantai Lima Project.  PW8 passed away on 8 April 2018 when she was involved in a motorcycle accident in Bali.

28.  As to the witnesses required by the prosecution, there is no doubt that the evidence of PW1, PW2, PW3 and PW5 is crucial.  They will testify how they entered into their respective investment agreements with D1 and D2, and what they were required to pay or not to pay as their shares of contributions to one or both of the two Projects. They will testify how they found out the irregularities on the part of D1 and/or D2, and how they responded thereafter.  Mr. Rafael JOORY (PW4) who is the son of PW3 will testify how he introduced PW3 to D1, and how he assisted PW3 to discover the false representations made by D1 including overstating the land cost and the building cost of the two Projects.

29.  The other prosecution witnesses are Mr. CHAMPOMMIER Yves (PW6), Mr. KUSUMA Terry Ananta (PW7) and GEDE Witama (PW11).  They were involved in the acquisition of land and building of villas in Indonesia as instructed by D1 and/or D2.  Their evidence is relevant to the actual land cost and building cost for the Pantai Lima Project, and the actual land cost for the Soka Project.  Such evidence is essential on the issue whether or not D1 and/or D2 had practiced any deception upon the co-investors of the Pantai Lima Project and the Soka Project.  All these witnesses are now in Indonesia.

30.  There are some other prosecution witnesses in Hong Kong.  Miss Ma Siu-wan, Kannie (PW9) who worked for PW3 will testify that she had upon instruction of PW3 sent email from D1 to PW5.  Mr. Chan Yat-chor (PW10) who was a subordinate of PW5 in the company where PW10 worked will testify how he assisted PW5 to communicate with D1 when PW5 started to have suspicion of some wrongdoing on the part of D1, and how D1 responded to the enquiries of PW5.  PC8407 (PW12) and PC9750 (PW13) will testify how they respectively arrested D1 and D2.  Mr. Choi Tin-yan (PW14) from the Companies Registry will give evidence on the company documents filed by Absolutelybali HK Ltd in the Company Registry.

31.  According to the information supplied by Inspector Ngai, the prosecution may lose one of the alleged victims as a prosecution witness because of his age.  At this moment, while PW1, PW2 and PW5 may still be regarded as relatively young since they are only aged 61, 48 and 61 respectively, PW3 is already 78 years old.  It is clear that PW3’s evidence is crucial to the prosecution case because PW3 was involved in both Projects from their beginning to the end.  PW3 had also taken up the share of Mr. V-TEK who withdrew from the Pantai Lima Project at certain stage, and introduced PW5 to D1 to co-invest in the Soka Project.  In light of the advanced age of PW3, even though PW3 claims that he is still of good health at this point of time, it is beyond doubt, from the perspective that all material evidence has to be placed before the trial judge, that the sooner for PW3 to give evidence, the better.

32.  There is also the risk that the prosecution may lose some witnesses due to their health problems. PW5 who is in France now had serious illness two years ago.  PW10 who is in Hong Kong is a patient suffering from serious cancer.  Although his condition is stable recently, cancer has already spread to many of his organs.

33.  Apart from the risk of losing witnesses due to age and/or health problems, it will also be difficult to gather all relevant witnesses to come together again to testify for the prosecution.  PW1 and PW5 are now in France, PW2 in Singapore, PW3 in Europe, and PW4 in Israel.  While PW1, PW3, PW4 and PW5 are willing to travel to Hong Kong to testify in the forthcoming trial if they are exempted from the quarantine requirement due to the pandemic situation, it is not known if they are willing to do so again if the trial of D2 is to be held separately. 

34.  In addition, since PW2 does not want to travel to Hong Kong, he will give evidence via live television link from Singapore.  Likewise, PW6, PW7 and PW11 will not travel from Indonesia to Hong Kong, and will also give evidence via live television link. Making the arrangements and setting up the necessary equipment for evidence to be given in two different countries outside Hong Kong at the same time will no doubt involve a lot of effort and expenses, and require the co-operation of other agencies outside Hong Kong.

35.  In the opinion of this court, it will be unfair to the prosecution if it is forced to hold a separate trial for D2 at a later stage when some of the essential witnesses may be lost in the future.  It is also unfair to the prosecution if it has to incur further expenses to hold a second trial when many of the prosecution witnesses are from overseas.  In any event, there is no hint whatsoever that deferring the trial of D2 may give D2 a chance to be present in court at her trial.  This court notes that the prosecution has already tried to contact D2 by phone and by email recently with a view to notifying her that her trial may take place in her absence, but there is no response from D2.

36.  If the trial of D2 is to take place in her absence together with the trial of D1, there is no doubt that D2 will not be legally represented at this trial.  This is a disadvantage that D2 will suffer, but it is a misfortune of her own making because it is she who has absconded from this jurisdiction, and who did not instruct her counsel and solicitors to defend her at the trial in the hearing on 10 October 2013 but just to make an application for adjournment of the trial. No doubt D2 is psychologically prepared not to be legally represented if her application for adjournment of the trial fails and her trial is ordered to proceed in her absence.  It is D2 who has waived her right to be legally represented at her trial.

37.  In any event, this court notes that D2 may be benefitted from the legal representation of D1 in the forthcoming trial.  In the trial of D1, it appears that one of the issues to be raised by D1 is that he did not cheat any of the alleged victims by inflating the amount of land cost and building cost incurred for one or both of the two Projects.  This court is able to draw this inference because on 8 February 2013 when D1 and D2 applied for adjournment of the trial to be held on 14 February 2013, one of the grounds relied upon was that the defence was preparing an accountant report by its expert.  This line of defence is likely to be pursued by D1 and his legal representatives in the forthcoming trial, and it will surely benefit D2. 

38.  This court is also quite confident that D1 will not run a cut-throat defence against D2 in her absence for the simple reason that if this were the situation, the same team of counsel and solicitors, including leading counsel Mr. Daniel Marash S.C., would not have represented both defendants in the same hearing on 8 February 2013. In fact, for all other hearings before 8 February 2013, D1 and D2 were also represented by the same team of counsel and solicitors, though Mr. Marash S.C. was not involved in those hearings.

39.  In addition, the trial judge will certainly bear in mind that since D2 and her legal representatives are not present at the trial, he will be conscious of his duty to render as much assistance as possible to D2 so long as the circumstances may permit to ensure that D2 will have a fair trial.  He will scrutinize the evidence of the prosecution witnesses and/or that of D1 critically, expose possible weaknesses in the evidence and make such points on behalf of D2 as the evidence may permit. 

40.  It is also certain that the trial judge being a professional judge will not draw any adverse inference against D2 from the mere fact that she has not attended her trial.

41.  This court is well aware that while it has the discretion to order a trial to take place or continue against an unrepresented defendant in his absence, it must exercise its discretion with great care and caution, and it is rare and exceptional for its discretion to be exercised in this way.  The ultimate yardstick is fairness of the proceedings.  While fairness to the defendant is of prime importance, fairness to the prosecution must also be taken into account. 

42.  From the analysis stated above, it is clear that it is D2 who has made a conscious and deliberate decision to abscond from the jurisdiction of the Hong Kong courts, and that she has waived her rights to be present and to be legally represented should the trial against her proceed in her absence.  Even if the trial against D2 is to be deferred for another period of time, it is extremely unlikely for D2 to surrender to this court and/or for the authority to locate her during any extended period of time.  On the other hand, if the trial of D2 is to be held separately from that of D1, it will be unfair to the prosecution in that the prosecution is under a real risk of losing some essential witnesses on age and/or health grounds, and some witnesses may be reluctant to testify again, not to mention the passage of time may have a detrimental effect on their memories of the relevant events.  Such damage to the prosecution if occurs will be irreversible. The prosecution may also have to incur further expenses to bring some of the overseas witnesses to come to Hong Kong again to testify, or to arrange live television links outside Hong Kong again for these witnesses to testify.  While D2 may suffer some disadvantage if she and her legal representatives are not present at trial, the disadvantage is caused entirely by her, and the extent of disadvantage may be minimized because D2 will or may benefit from the challenge launched by D1 and his legal representatives against the prosecution case.  The trial judge will also safeguard the legitimate interest of D2 to ensure that she will have a fair trial.

43.  Having considered all circumstances of the case and balanced all relevant factors, this court concludes that it should exercise its discretion to order the trial against D2 to proceed in her absence and to be held at the same time together with the trial of D1.

44.  Although this court grants the application by the prosecution on 20 October 2020, it is conscious of the fact that events may occur afterwards that make it imperative for the court to reconsider this issue again.  For instance, D2 may suddenly return to Hong Kong, or she may notify the court or the police that she is about to return to Hong Kong within a reasonable period of time. 

45.  For this reason, the application by the prosecution is granted with the added qualification that the trial judge shall review all the circumstances of the case on the first day of the forthcoming trial and decide again whether to hold the trial against D2 in her absence or make some other appropriate order.