CKC v. SHTH

FCMP 262 / 2015

[2024] HKFC 95

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT MISCELLANEOUS PROCEEDINGS

NO. 262 OF 2015

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BETWEEN

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DECISION
(Committal – Respondent’s absence)

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1.  Today is the 6^th hearing[1] for sentencing the contempt of court found by DDJ A. Yim (as she then was) on 15 January 2016 (“Committal Order”) against the Respondent mother (“Respondent”) for her breach of two court orders made on 9 April 2014 and 7 August 2014 regarding, inter alia, the custody, care and control of the Minor and an order that the Respondent do hand over the Minor to the Applicant father (“Applicant”). The Respondent was absent in 5 of the hearings, including today.

2.  The events leading to the Committal Order can be found in the Judgment of DDJ A. Yim[2], which was made when the Respondent went hiding with the Minor. The Respondent and the Minor were located by the police on 28 October 2022.

3.  The Respondent was present at the hearing on 29 June 2023 when I directed all parties to file submissions on the contempt proceedings and adjourned the hearing to 26 September 2023.

4.  On the day before the due date for her submissions, a letter from the Respondent was lodged into the court (without copy to the other parties) asking for an extension of 4 weeks to lodge her written submissions. The Respondent was directed to take out application for time extension with notice to the other parties and was reminded not to unilaterally correspond with the court. The court reiterated the warning given at the June hearing that the nature of current proceedings is serious and may give rise to significant consequence, the Respondent should seek independent legal advice. By then, the Respondent should have noted the Applicant and the Official Solicitor’s submissions that immediate imprisonment is the appropriate sentence.

5.  The Respondent has not taken out any application nor lodged any submissions.

6.  On 25 September 2023, the day before the scheduled hearing for sentencing, the court received a Memorandum of Notification of Legal Aid Application made by the Respondent. At the hearing on 26 September 2023, the Respondent informed the court that she had consulted various lawyers but she was not satisfied with their advices, therefore she applied for legal aid.

7.  As a result of her legal aid application, albeit made very late, the proceedings were stayed until 6 November 2023 pursuant to section 15 of the Legal Aid Ordinance and rule 7A of the Legal Aid Regulations.

8.  The hearing was adjourned to 16 November 2023. The Respondent was reminded again that she should seek independent legal advice whether on legal aid or not.

9.  The court was subsequently notified by the Director of Legal Aid that the Respondent’s application for legal aid was refused.

10.  The Respondent was absent on 16 November 2023. A warrant of arrest was issued.

11.  On 21 November 2023, the Respondent took out a Summons for discharge of the warrant of arrest. She filed an affirmation stating that she arrived at the ground floor of the court building at 10:20 am on 16 November 2023. While she was on the way to the Family Court, she fainted and was sent to hospital by ambulance. She was admitted to the hospital for observation. She produced a medical certificate stating that sick leave from 16 to 17 November 2023 was recommended for her “medical condition”.

12.  The Respondent’s Summons for the discharge of the warrant of arrest was fixed to be heard on the same day of the adjourned hearing of the committal proceedings, i.e. 5 December 2023.

13.  In the late afternoon of 4 December 2023, a letter titled “請假信” was lodged into the court stating that the Respondent was sick and could not attend the hearing on 5 December 2023. She asked the court to adjourn the hearing. A medical certificate from a doctor of Priority Healthcare Medical Centre dated 4 December 2023 was attached. The Respondent was diagnosed to have suffered from “hypertension and dizziness”. Three days’ sick leave from 4 to 6 December 2023 was recommended.

14.  The hearing was further adjourned to 21 December 2023 or an earlier day when the Respondent is brought to the court under the warrant of arrest.

15.  The Respondent continued to be absent from the hearing on 21 December 2023. A letter titled “請假信” dated 21 December 2023, which was substantially the same as the letter dated 4 December 2023, was lodged into the court. A sick leave certificate issued by a registered Chinese medical practitioner was attached. The diagnosis was “dizziness”. Sick leave for two days from 20 to 21 December 2023 was recommended. This court adjourned the hearing to 1 February 2024.

16.  In the meantime, the court was informed that the bailiff had attempted to execute the warrant of arrest, but not successful.

17.  The Respondent did not appear at the hearing on 1 February 2024. The Applicant applied for the hearing to be continued in her absence. I directed all parties to lodge submissions on the application. The hearing was adjourned to today, 3 May 2024.

18.  After the hearing, the court received a letter titled “請假信” dated 1 February 2024 stating that the Respondent could not attend the hearing because her blood pressure and heartbeat were not stable. She suffered from serious illness and her health condition was poor (由於近日遭受連番迫害和思念愛女心痛泣淚之故，血壓心跳很不穩定並勞傷成病頗重，身體極差，未能出席今天的聆訊). She has not produced any medical evidence. She also made allegations against the Applicant and the Social Welfare officers on matters relating to the Minor. I directed the parties to make submissions on the aforesaid letter.

19.  The Respondent was absent today.

20.  A letter titled “請假信” was lodged into the Registry of the Family Court 15 minutes before the hearing. There is the same sentence about her poor health as the one in the 1 February 2024 letter. No medical certificate was produced. The Respondent repeated allegations against the Applicant and the Social Welfare officers.

21.  The Applicant submitted, relying on Secretary for Justice v Cheung Chi Ho (see below), that a “long stop” day be set for the sentencing. The Official Solicitor did not object.

Legal Principles

22.  This court has the discretion to commence or continue with a trial in the absence of a defendant/respondent. The discretion has to be exercised with great care, and only in rare and exceptional cases.

23.  In HKSAR v Singh Gursewak, CACC 399/2013, unreported, 11 December 2014, the Court of Appeal has summarised the principles as follows:

“30. There is no dispute that a judge has a discretion to commence and/or continue with a trial in the absence of a defendant. In HKSAR v Kwan Wai Keung & Others, this Court approved expressly the principles endorsed by Lord Bingham in his speech in R v Jones (Anthony) as applicable to the exercise of the judicial discretion to commence or continue with a trial in the absence of a defendant. Save in respect of the relevance of the issue of the seriousness of the offence, the factors which Lord Bingham endorsed were those stipulated in the judgment of the Court of Appeal of England and Wales delivered by Rose J, as he was then, in R v Heyward, namely :

“ 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. 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.

3. 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.

4. That discretion must be exercised with great care and it is only in rare and exceptional cases that it should be exercised in favour of a trial taking place or continuing, particularly if the defendant 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. The judge must have regard to all the circumstances of the case including, in particular :

(i) the nature and circumstances of the defendant’s behaviour in absenting himself from the trial or disrupting it, as the case may be and, in particular, whether his behaviour was deliberate, voluntary and such as plainly waived his right to appear;

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

(iii) the likely length of such an adjournment;

(iv) whether the defendant, though absent, is, or wishes to be, legally represented at the trial or has, by his conduct, waived his right to representation;

(v) 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 about the absence of the defendant;

(viii) the seriousness of the offence, which affects defendant, victim and 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 prospects of a fair trial for the defendants who are present.”

6. 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 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. In summing up he must warn the jury that absence is not an admission of guilt and adds nothing to the prosecution case.” [Italics added.]”

24.  In R v Jones [2003] 1 AC 1, Lord Bingham referred to the consideration of practical justice and expressed the opinion that[3]:

“one who voluntarily chooses not to exercise a right cannot be heard to complain that he has lost the benefits which he might have expected to enjoy had he exercised it.”

25.  In Secretary for Justice v Cheung Chi Ho [2023] HKCFI 2104, Coleman J set a “long stop” day to deal with sentencing after he found the defendant liable for civil contempt in the absence of the defendant:

“5. Having carefully considered the materials, I found the Defendant liable for the contempt.

6. However, I was not prepared to go on to deal with the sentencing or penalty phase of the hearing, without at least giving the Defendant one further chance to participate in these proceedings.

7. Instead, I ordered a warrant for his arrest, so that the Defendant might be brought back before the Court. But it also seemed to me to be appropriate to set a ‘long stop’ date, so that the matter would not be left open or in abeyance pending the effecting of the warrant of arrest. I said that I would consider on that date whether it would then be appropriate to go on to deal with the question of penalty even if the Defendant continues to be absent.

8. The date I set was 14 August 2023, i.e. today. I am again satisfied that the Defendant has been served in accordance with my order for substituted service. I also note that the finding of contempt garnered some media coverage, and may well have come to the attention of the Defendant or those persons in contact with him who might have informed him of it.

9. However, as already stated, the Defendant has continued to be absent. He is neither present nor represented in Court. Nor has there been any communication from him. In the circumstances identified below, this is perhaps not surprising.

10. Having considered matters, and where the Court clearly has jurisdiction to proceed to sentencing in the absence of the defendant where circumstances so justify, it seems to me that I should no longer put off dealing with the question of an appropriate sentence to impose for the Defendant’s contempt of Court, which I have found proved.

……

29. The Defendant has not appeared in, and has apparently refused to engage in, these proceedings. He has deliberately not only failed to admit liability for contempt, but he has also deliberately failed to offer any form of apology for his conduct. I find no remorse.

30. Indeed – contrary to offering any expression of remorse, contrition or apology – the Defendant appears to have deliberately jumped bail and absconded from the jurisdiction to seek to avoid liability (whether for the criminal offence or the present civil contempt).

31. I should add that no aspect of the delay in launching these proceedings – which I dealt with on the application for leave – seems to me to be of any great weight in the assessment of the appropriate sentence in this case, where the Defendant has simply absconded and refused to face the consequences of his actions.”

Decision

26.  The Committal Order was made in 2016. There is no appeal against the Committal Order. What remained to be determined is the sentence.

27.  I am satisfied that the Respondent has knowledge of the proceedings and all the adjourned hearings:

(1) She was present at the hearings on 29 June 2023 and 26 September 2023.

(2) She has written to the court in July 2023 seeking an extension of time to lodge submissions on the committal proceedings.

(3) She has made application to discharge the warrant of arrest in November 2023.

(4) She was served with the relevant court orders and the submissions of the Applicant and the Official Solicitor by email with hard copies collected by her nominated representative, Mr Yeung, at the office of the Official Solicitor.

(5) For each of the 5 hearings[4] when she was absent, including today, she lodged into the court letters or sick leave certificates. It was noted that one to three of her friends had attended these hearings in the public gallery. On some occasions, some of them intended to address the court from the public gallery.

28.  On 26 September 2023, this court adjourned the hearing due to the Respondent’s last minute application for legal aid (which was unsuccessful). The Respondent was then absent in the subsequent 5 hearings.

29.  It is not in the interest of administration of justice if this matter was left in abeyance pending the execution of the warrant of arrest. After the Committal order was made in 2016, the proceedings came to a halt for about 6 years since the Respondent went hiding with the Minor.

30.  As shown in the documents lodged by the Respondent on 1 February 2024 and today, allegations were made against the Applicant and the social welfare officers. Further delay may affect the memories of the relevant parties in regard to these matters which the Respondent took issue.

31.  Having carefully reviewed the evidence before me, I doubt the Respondent’s assertion that she was so ill on the day of each of these hearings to the extent that she was physically unable to attend. I note that:

(1) In respect of the last 2 hearings and today, the Respondent’s bare assertion that she was ill was not supported by any evidence.

(2) As shown in the medical certificates produced for the earlier hearings, she was diagnosed to have suffered from hypertension and/or dizziness. There is no evidence to show that her illness was severe to the extent of making her unable to attend the hearing at all after medical treatment.

(3) Her illness does not appear to be chronic. She consulted doctor on the day before the hearing, and only 2 to 3 days sick leave were recommended.

32.  Much indulgence has been given to the Respondent in the past 6 to 9 months. I am prepared to give the Respondent one last chance to participate in the proceedings.

33.  I adjourn the hearing to 24 September 2024 at which I will consider whether this court shall exercise the discretion to deal with sentencing even if the Respondent continues to be absent.

34.  If the Respondent needs to seek adjournment of the hearing for health reason, she has to produce cogent medical evidence for the court’s consideration by producing a medical report issued by a registered medical practitioner in Hong Kong certifying (1) the detail diagnosis of the Respondent’s illness; (2) that the Respondent is unable to attend the hearing on 24 September 2024 because of her illness; (3) the medical treatment prescribed to the Respondent; and (4) the likely time frame when the Respondent would recover and be able to attend the court hearing.

35.  At the risk of repetition, the Respondent is reminded to seek independent legal advice, if she has not yet done so, on this matter.

36.  [Submission on costs]

37.  This is a contempt proceedings. Today’s hearing is wasted due to the Respondent’s behaviour. I order that the Respondent do pay the Applicant’s and the Official Solicitor’s costs of today’s hearing on an indemnity basis, to be taxed if not agreed.