HKSAR v. PAULINE ELLEN COUSINS

CAC C 475/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 475 OF 2009

(ON APPEAL FROM DCCC NO. 409 OF 2008)

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BETWEEN

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J U D G M E N T

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Hon Hartmann JA (giving the judgment of the Court):

1.  On 30 November 2009, after a trial in the District Court before Judge Andrew Chan, the applicant was convicted of four counts of furnishing false information, contrary to section 19(1)(b) of the Theft Ordinance, Cap. 210. She was sentenced to a total of 21 months’ imprisonment.

2.  The applicant sought leave to appeal her conviction, that application being set for this morning. 

3.  The applicant, however, is not present nor does she have a representative in court to explain her absence.

4.  The history of events since the applicant’s conviction has been more complicated than usual.  By way of a summary, matters can be explained as follows.

5.  On 25 February 2010, the applicant sought bail pending her appeal.  The application was adjourned as the applicant had not at the time filed grounds of appeal save for a bare submission that the verdict of the judge at first instance had weighed heavily against her and had been biased.  The application for bail was not renewed and in the result, as we understand it, the applicant served her full sentence.

6.  Handwritten grounds of appeal were only filed in early January 2011, a few days before the applicant applied for leave to appeal against conviction before a single judge.  That hearing took place on 13 January 2011 before Yeung JA (as he then was). Leave to appeal was refused.

7.  Thereafter the applicant renewed her application and in July 2011 received a formal notice of set down informing her that the matter would be heard today.

8.  On the papers available to us, it appears that the applicant may have encountered difficulties securing legal representation through Legal Aid Department.  However, there is no doubt she was aware of today’s hearing.

9.  In a letter dated 4 November 2011 – posted from the United Kingdom but bearing her usual Hong Kong contact address – the applicant made reference to today’s hearing although she referred to it as a “listing hearing”.  In her letter, the applicant said that, because of confusion as to what was to take place today, she could not attend the hearing.  With respect to the applicant, if there was any confusion it was of the applicant’s own making.  Today’s hearing has had one purpose only, that is, to enable the applicant to seek leave to appeal her conviction before the full court.

10.  In order to ensure that the applicant was under no misapprehension as to the nature of today’s hearing, on 16 November a letter was taken to her Hong Kong contact address by the bailiff.  In part, the letter read:

“… It being your appeal, it is incumbent upon you to be present at the hearing. If you wish to seek an adjournment of your application then you will have to make that application at the hearing itself, giving reasons why it should be granted. If the application for an adjournment is refused, the court will immediately proceed to hear the substantive application for leave to appeal.

In the circumstances, if you fail to attend the hearing, there is a grave risk that your application for leave to appeal will be dismissed.”

11.  The applicant’s contact address appears to be the offices of a firm of accountants.  Persons in the office informed the bailiff that they knew of the applicant but that she was not present and they did not know when she would next visit the office.

12.  However, matters did not end there.  In his affirmation of non-service, the bailiff said the following:

“A telephone call was received from aforesaid Applicant on the same [day] at about 1730 hours, who did not provide any forwarding address for effecting service. Instead, would attend Court direct.”

13.  Within less than an hour of the bailiff’s visit to the offices of the firm of accountants, therefore, the applicant, telephoned him and said that she would “attend Court direct”. 

14.  The applicant, however has neither attended court in person, sent a representative, nor in any other way made her presence known.

15.  In the circumstances, the applicant being in default, her application for leave to appeal is dismissed.