HKSAR v. NG CHI YUEN

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1994, No.104
(Criminal)

HEADNOTE

Criminal procedure - trial proceeding in absence of defendant - factors to be considered in exercise of discretion whether to proceed.

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1994, No.104
(Criminal)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. This is a very unusual appeal. The applicant faced one charge of conspiracy and two charges of theft. The conspiracy which was stated to be contrary to common law and to s.9 of the Theft Ordinance, particularized that he, together with six named others, on divers days between May 1992 and June 1992, conspired together and with other persons not in custody to steal motor vehicles, namely, Mercedes Benz cars, in Hong Kong. The first of the theft charges particularized that he and the six named persons on 2nd June 1992, at the fourth floor car park of Tuen Mun Town Plaza, New Territories, stole Mercedes Benz DE2282, the property of Headworld Nominees Limited. The third charge alleged that he and the named six persons on 2nd June 1992, at Sha Kok Estate car park, New Territories, stole a Mercedes Benz DU 3263, the property of Tsang Chi-hung. The prosecution first came before Deputy Judge C. Wong in the District Court on 5th May 1993. In each of the charges, the applicant was D5.

2. On the 2nd June 1992, at 5:20 a.m. at Ma Fu Road, Tai Po, near hydrant No.4612, Detective Police Constable 17949 Yau Kwok-chu had, according to a cautioned statement, arrested and cautioned the applicant:

"I'm Detective Police Constable 17949 Yau Kwok-chu, currently attached to Division B, Organised Crime and Triad Group, Hong Kong Police Headquarters. Now, I arrest you because I've reasons to believe that you conspired with other people, to steal two Mercedes Benz vehicles and sold them to other people unlawfully. Now, I caution you, Ng Chi-yuen, that you're not obliged to say anything, but whatever you say will be taken down in writing and may be given in evidence. Do you understand?"

3. It is important to note that from the very outset a conspiracy to steal two Mercedes Benz vehicles was alleged.

4. The applicant then said:

"I know about it. It has nothing to do with me. I just 'chaai sin'. It was they who stole the Mercedes Benz cars and took them here for handing over to other people. I didn't steal any of them."

5. This statement was recorded in the D.P.C's notebook and signed by the DPC and the applicant.

6. Some four hours later at 9:10 a.m., in Room 218 of the Criminal Investigation Department, Tai Po, the applicant was said to have been further questioned by another police officer DPC 22523 who said:

"I now continue to make enquiries of you concerning a case of car theft. This case took place between 1st and 2nd June 1992. You conspired with other people to steal two 'Mercedes Benz' cars, the registration numbers of which being DE 2282 and DU 3263 respectively. Earlier on, that is at 5:20a.m. on 2nd June 1992, near the hydrant, no.4612 at Ma Wo Road, Tai Po, DPC 17949 arrested you because he had reasons to believe that you, conspired with other people, to steal two 'Mercedes Benz' cars and sold them to other people unlawfully."

7. The D.P.C. then repeated the caution and the alleged reply set out in the notebook and again cautioned the applicant. For a second time, the allegation of conspiracy was made. A series of questions and answers followed. The applicant in his answers clearly admitted complicity in a conspiracy to steal Mercedes Benz motor vehicles.

8. There is nothing in the appeal bundle to show what transpired between 2nd June 1992 and 5th May 1993, 11 months later. It appears, however, that all of the defendants were given bail and that all appeared on 5th May before Deputy Judge Wong. It seems that in those eleven months, none had obtained legal representation and all stated that they wished to be represented by legal aid. The court stood down the matter until 2:30 p.m. to allow them to apply for Legal Aid. Upon resumption they all stated that they had been told to go back to the Legal Aid Department for a conference that afternoon. The matter was then adjourned to 9:30 a.m. on 6th May to allow them to do so.

9. On 6th May, Mr. James Li of James W.L. Li & Co. stated that he had been instructed by Legal Aid to represent D1, D5 (the applicant), D6 and D7. D6 and D7 had not arrived at court and D3 was said to be in the Princess Margaret Hospital. The applicant will be referred to hereafter as D5. The matter was then stood down for half an hour, by which time D7 had arrived but D6 was still missing.

10. Mr. Chan Siu-ming, who was representing D2, D3 & D4, said in relation to D3 that he was still waiting for a medical report from the hospital. D6 being absent, the Deputy Judge issued a Warrant of Arrest. D6 shortly thereafter arrived in court and the order for the issue of a warrant was revoked. The judge then advised all defendants to attend court punctually and warned that bail would be revoked if they did not. The matter was then adjourned to 9:30 a.m. on 7th May and bail was extended.

11. On 7th May, when the matter was called on, D6 and D7 were again not present and a medical report regarding D3 was handed to the judge which indicated that it was not known when he would be fit for trial. At 9:50 a.m. D6 arrived at court and at 9:55 a.m. D7 arrived. The judge ordered that $2,000 each of the bail money of D6 and D7 be estreated and warned them if they were late again bail might be revoked. Mr. Li then asked for the case to be refixed stating that he had to assess the strength of the Crown case against D1, D5, D6 and D7 and that it rested mainly on cautioned statements. He said:

"Re D5, D6 and D7 I understand also cautioned statements taken by the same team of Police Officers. I anticipate Police Officers would deny assaulting D1. Credibility would be in issue. Medical report may cast doubt on police officer. Doubt would flow to Police Officers who took cautioned statements from D5, D6 and D7. I need to see the report before cross-examining the Police Officers. We are on 3rd day of trial. Seven days have been allocated. Case would overrun. 45 prosecution witnesses. May take 10 days or more. Defendants may give evidence." (Emphasis supplied.)

It will be remembered that these cautioned statements plainly stated that the offence alleged was conspiracy.

12. He went on to say that the court should also adjourn to allow for the obtaining of a medical report as to the condition of D1 who alleged that he had been assaulted and that, after examination by a doctor in Lai Chi Kok, bruises were found. Mr. Tong, the Crown Counsel, opposed the application to adjourn saying:

"I agree case would overrun. What has happened so far, clear Defendants try to delay trial. Defendants represented in plea Court. They delayed in giving instructions. All 7 defendants had no legal representation on first day of trial. They tried to get adjournment. The situation they are now in i.e. late instructions to Legal Aid Department, fault of theirs."

13. He went on to say that the trial would involve six voir dires. In the outcome, the judge adjourned the trial to 9:30a.m. on 10th May and extended bail.

14. The matter resumed on 10th May. D2 was absent but his mother stated that he was in the Precious Blood Hospital. Mr. Li stated that D1 had kept his appointment to give him instructions but that D5 and D7 had not done so. Mr. Tong said:

"Faced with familiar situation of defendant in hospital, can't proceed. I have grave concern about behaviour of D3, D5, D6 and D7 during last adjournment. D3 was admitted to hospital on Thursday. Two medical reports from Princess Margaret Hospital. They did not support allegation by D3 that he is suffering from any disease. I do have grave doubt as to genuine intention of D3 putting himself in hospital. As for D5 and D7, they are represented by Mr. Li. Told to see Mr. Lee. They knew full well trial would proceed on Monday. Instructions must be taken from them so that case can proceed. They chose to skip appointment rendering us unable to proceed. D6 did not bother to turn up because he had forgotten Mr. Lee's address. This is unacceptable. D6 knew full well Mr. Li is representing D1, D5 and D7 as well. He can obtain Mr. Lee's telephone number or address from the other Defendants or by looking up yellow pages. Ask their bail be revoked so that they would give instructions and turn up for trial. Their conduct is unacceptable. Because of their behaviour, a team of Police Officers has been tied up, ready to give evidence. Because of their behaviour, the effort is wasted." (Emphasis supplied.)

15. Mr. Li, counsel for the defendants, only reply to these allegations, was: "I have no comment".

16. The judge then adjourned the matter to 10:30a.m. on 11th May for mention as, given that the trial would last more than 10 days, there was now no judge available to take it. He extended the bail of the defendants.

17. When the matter was called on 11th in front of Deputy Judge O'Donnell, the accused, except for D2 who was in the Precious Blood Hospital, were present. Crown Counsel then stated there would be 45 witnesses, 15 cautioned statements and the trial would last for 15 days. The case was then adjourned for more than eight months until 17th January 1994 with 15 days allocated. Bail was ordered to be continued.

18. On 17th January 1994, the matter came on for hearing. D3 and D5 were absent. Mr. Li stated:

"I appeared for D5 instructed by DLA before. Recently I came to know D5 is not in Hong Kong now."

19. Crown Counsel applied for Warrants of Arrest to be issued for D3 and D5.

20. At this point the prosecution sought leave to add a charge of conspiracy. Counsel for the defendants submitted that reasons should be given for the late addition of this charge and indicated that the prosecution may well be put to election as to whether they would proceed on the conspiracy or the substantive charges.

21. It seems that the two charges then before the court were the two theft charges. D3 then arrived and the Warrant of Arrest issued for him was ordered to be cancelled. Although the record does not so state it seems clear that a warrant was issued for the arrest of D5. The matter was then adjourned to 2:30 on 18th January.

22. Upon resumption, Crown Counsel said that there was no objection taken to the adding of the conspiracy charge but that counsel for the defendants were seeking to put the Crown to election as to the charges to be pursued. After further argument, the court made the following ruling:

"No objection is taken to the amendment by adding the conspiracy charge to the charge sheet and I only have to consider whether or not the prosecution can justify proceeding on all charges or whether the interests of justice and fairness require that the prosecution elect whether to proceed on the conspiracy alone or on the substantive charges.

The history of the case is relevant. The case first came before the District Court on 21 August 1992 when the trial was fixed for 5 May 1993. Seven days were allocated.

On 5 May 1993 the case was adjourned without plea and was further adjourned each day thereafter until 10 May 1993. On 11 May 1993 this trial date was fixed.

The summary of facts relating to the charges then laid was prepared by Senior Crown Counsel. These facts are also relied upon by Mr. Kwok prosecution on fiat.

The cautioned statements of all accused were available to Senior Crown Counsel and all set out the reason for arrest and enquiries by Police was in relation to conspiracy to steal cars. Counsel who had conduct of the prosecution could not possibly have overlooked the question of adding or(sic) charge of conspiracy either when the Defendants were first charged or at least when the charges were laid in the charge sheet before the District Court. In those circumstances I hold that it would be unfair to all Defendants now to allow the prosecution to join the conspiracy charge with the substantive charges for joint trial. On this ground I hold that the prosecution must elect as to which charges to proceed on."

23. The matter was then adjourned until 19th January 1994. Upon resumption, the Crown Counsel said:

"Can deal with two matters. I apply to proceed against D5 in his absence. His absence is voluntary. In May 1993 he arrived late and has failed to meet bail conditions by failing to present to Police Station since September 1993. He was required to present each Monday and Friday at Tsuen Wan Police Station 6 - 9 p.m.

I refer to Archbold 1993 @ 3-203 and 3-205. I accept I have to show D5's absence is voluntary. Submit that by failing to report, failing to give instructions to lawyers appointed by Legal Aid and failure to attend trial clear inference is D5 is voluntarily absent. No message that he is in hospital or otherwise involuntarily absent. Concede Bill of Rights is relevant but it's within discretion of the Court.

If D5 were to later appear he could make further application.

Mr. Li:

I represented D5 in May. He was present on all occasions and was present when this trial date fixed. I was in regular and frequent contact until September when he disappeared. My enquiries lead me to believe he is not in Hong Kong.

Court:

Satisfied that D5 is voluntarily absent. Question is whether unjust or unfair or in breach of both to proceed in D5's absence. Satisfied I should exercise discretion in favour of prosecution and will proceed against D5 in his absence."

Crown Counsel then said that he elected to proceed on the conspiracy charge. The trial then proceeded and, in the outcome, the judge was satisfied, relying upon the cautioned statements, that D5 was guilty of the conspiracy.

24. Mr. Hoosen, who appears for the applicant, submits in his first ground that there was a material irregularity in the trial in that D5 was tried on a charge to which he had not pleaded as he was not present when the conspiracy charge "was put in court, and the trial of that charge against him up to conviction proceeded throughout in his absence." He argues further that the proceedings against D5 were, in the circumstances, a nullity.

25. Neither Mr. Hoosen nor Mr. McWalters, who appeared for the HKSAR, were able to find any cases directly in point.

26. It was argued by Mr. Hoosen that the law is correctly set out in R. v. Abrahams, (1895) VLR 343. This case was cited in Hong Kong in the unreported Hong Kong case of Hong Yuk-lin v. R, Crim.App. 988/81. Li J.A. said:

"The trial judge, in his Reasons for Verdict, gave clear and precise reasons why he decided to proceed with the trial in the appellant's absence. He felt that she had voluntarily waived her right to be present and that, if trial was adjourned, prosecution witnesses might not be available and, if available, might not remember the facts that should be given in evidence.

In support of his application for the trial to proceed in the absence of the appellant, prosecuting counsel cited the case of Jones, (1972) 2 All E.R. 731. In that case a defendant was legally represented. He was present in court until the prosecution had closed the case and a submission of no case to answer had been made and overruled. He left a note to his mistress stating the reason why he intended to jump bail. It was because the case was giving badly for him. He was subsequently re-arrested and extradited from Denmark. He appealed against his conviction, which occurred in his absence at the trial. Giving judgment for the Court of Appeal, Roskill L.J. referred to the case of Abrahams, (1895) V.L.R. 343, which was decided in 1895. He cited a passage from the judgment of Williams J. in Abrahams' case. Dealing with a situation where a person jumped bail Williams J. said at page 347:

'... if in such a case the accused was not represented by counsel in court, or even if he were so represented, his presence was necessary for the proper conduct of his defence by his counsel, the Judge would, I apprehend, certainly exercise his discretion by postponing the trial.'

The trial judge in the present case made the following remark which, if I may say so, was not only proper but very fair. He said:

"If I had read the judgment in Jones' case carefully and noted the above passages I doubt whether I would have made the order to continue the proceedings against the 4th Defendant, that is the Appellant, in her absence. I think I was wrong to do so.'"

27. Li J. went on to hold:

".... we are of the opinion that in the interests of justice the trial judge should have exercised his discretion at the time to adjourn the trial vis-à-vis the appellant so as to give her a chance to defend her cause. This is particularly so because the appellant was not legally represented at the trial. Her presence was necessary for the conduct of her defence."

28. Mr. Hoosen suggests that, if a defendant's presence is "necessary for the proper conduct of his defence", the judge has no option but to refuse to exercise his discretion. We do not agree. If it were so the judge in almost every case would have no discretion at all. We are satisfied that there is a discretion in the judge which he must exercise in accordance with all of the circumstances of the particular case. Lord Roskill in Jones' case cited the judgment of Hood J. in Abraham's case at 735, in which Hood J. said:

"I wish to say that while agreeing that as a matter of law trial for misdemeanour may proceed in the absence of the defendant, it must not be understood that such a course would in these days meet with approval. I think that not only has an accused person a right to be present during the hearing of any proceedings against him, but as a rule, which should never be departed from except under special circumstances, he is also bound to be there.

All that we are here deciding, in my opinion, is that the presiding Judge may in misdemeanours proceed without the presence of the prisoner, where the absence is voluntary. He has in law a discretion, but that discretion should be exercised with great reluctance, and with a view rather to the due administration of justice than to the convenience or comfort of anyone."

29. Lord Roskill commented:

"This court respectfully adopts that language as correctly stating the position. The only question this court has to decide is whether Judge Gillis exercised his discretion properly. In the view of this court he plainly did so exercise it."

30. We pause here to note that the distinction between a felony and a misdemeanour is no longer of any significance. In Jones' case the court was satisfied that the appellant, having voluntarily absconded after having had his no case submission rejected, was, when seeking to have his conviction quashed, making an application which was "entirely without merit". We think the modern approach is well stated in McHardie v. Danielson 10 A.Crim.R. 51. In that matter, the court held, at p.57:

"It should also be observed that when the trial starts, the procedure of a normal criminal jury trial provides for the presentation of the Crown case in the presence and hearing of the accused, and includes the right of the accused to test the evidence by cross-examination, either by himself, or by his legal representative. It also includes the right to give evidence (or to make a statement), the right to call evidence, and the right, either by himself or his counsel, to address the jury. We think it correct to describe these procedural steps as 'rights', which may or may not be exercised by the accused at his option. The non-exercise of any of the accused's rights does not vitiate the trial.

The accused person has no 'right' to be absent from his trial - subject to cases of necessity (such as illness, where the interests of fairness and justice may require the trial either to be delayed or discontinued). Conversely, the accused person has a right to be present at his trial, subject to his conduct. It seems clearly established by authorities (as it is by common sense) that if the accused person behaves intentionally to make the continuation of the trial impossible, and if such conduct is found by the trial judge to have that effect, he may be removed from the court. We do not think this line of authority is decisive of the present question, but we will return to mention cases later. We do not think they restrict the denial of the accused's right to be present at his trial to cases of misconduct in court.

After a great deal of consideration, and the consideration of all the authorities to which our attention has been directed, and which we have been able to examine as a result of our own research, we have reached the conclusion that an accused person cannot be heard to say that he has been denied his right to be present at his trial when he voluntarily abandons that right (as well as all the other procedural rights he had at the trial, including his right to give evidence and to make a statement) by escaping from lawful custody in prison, and thus failing to appear at the continuation of his trial.

In our judgment, the learned trial judge, in holding that McHardie had waived his right to be present at the trial, with all that that entails, was clearly acting in accordance with legal principles and justice, and we are unable to hold on principle, or on authority, that the appellant's conduct necessarily resulted in the trial having to be discontinued by discharge of the jury." (Emphasis supplied.)

31. We are satisfied, subject to the question with which we will next deal, that it was within the judge's discretion to order that the trial in the present case continue in the absence of D5.

32. What was the effect of the addition of the conspiracy charge after D5 had absconded? This might affect the matter in two ways. Firstly, it might be said that, as the conspiracy charge was only added after the applicant absconded, he was never properly facing that charge and that the proceedings against him were a nullity. We were much concerned by this argument. It seems to us clear that if a person facing a theft charge absconds and an unconnected charge of rape is then added and proceeded with, that hearing would be a nullity as the offender would, in no sense, ever have been before the court on that charge. The matter did not, however, so stand in the present case. D5 had been arrested for conspiracy and twice cautioned for that offence. The two theft charges were the substantive charges associated with that conspiracy and were referred to in the caution. It is true that conspiracy is a more serious charge than theft, but we have no doubt that D5 throughout was aware that a conspiracy was alleged and that he absconded in the full knowledge that he was facing a trial in which the prosecution would present facts which, if proved, would establish a conspiracy. Given that he had notice of what was alleged, the hearing of the conspiracy charge was, we are satisfied, not a nullity.

33. We come then to the second contention. Given that the charge of conspiracy was only added after the applicant had absconded, was it incumbent on the trial judge to refuse to exercise his discretion? Put more directly this question asks - Was the judge wrong to exercise his discretion? We can only interfere with the exercise of a judge's discretion if the exercise was plainly wrong or if he took into account matters which he should not have taken into account or refused to take into account matters which he should have taken into account. The judge was well aware when he exercised his discretion that the conspiracy charge had been added. Indeed he had on the previous afternoon held that the Crown must elect. He was also well aware that the prosecution had throughout alleged the existence of a conspiracy. Given the length and complexity of the trial and the plainly deliberate failure of D5 to appear, there were, we are satisfied, cogent reasons for the judge to exercise his discretion. This would, it is true, result in D5 not being present at the trial to defend himself but, to use the words of the court in McHardie & Danielson, he "cannot be heard to say that he has been denied of his right to be present at trial when he voluntarily abandons that right ....". We also refer to the words of Roskill L.J. in Jones when he said at p.736:

"The applicant has brought this entirely on his own head, and he must now take the consequences."

34. There is no ground upon which we could properly interfere with the judge's exercise of discretion.

35. The third ground argued by Mr. Hoosen was a failure by the judge "to rule on the admissibility of the alleged verbal statement by the appellant at the scene of the arrest in that its voluntariness was not considered". The fact that there was never any such ruling may well have been because, D5 being absent, no objection was made to the admissibility of the statement. This was, however, a consequence which he had brought upon himself.

36. Mr. Hoosen's fourth ground seeks to take advantage of a suggested failure by the prosecution to disclose a police notebook. It has not been demonstrated how this affected the case against D5 and, further, as we have already said, he deprived himself of the opportunity to take advantage of such matters when he absconded.

37. We are satisfied that the judge was right to order that the trial continue in D5's absence and the application is dismissed.