HKSAR v. Walsh Kent Andrew

HCCC 368/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 368 OF 2015

_______________

_______________

Before: Hon Zervos J in Chambers

Date of Hearing: 16 November 2017

Date of Ruling: 15 December 2017

________________________________________

RULING ON PERSONAL ATTENDANCE

________________________________________

1.The Prosecution Division of the Department of Justice has decided to terminate the prosecution of the defendant for the offence of trafficking in a dangerous drug. The issue that I have been asked to determine is whether the arraignment of the defendant, who is currently residing in Australia, can take place without his attendance or via television link from Australia.

2.The defendant understandably wants to be formally acquitted of the offence for which he has been charged.  In order to do so, it is necessary that the defendant be formally arraigned, in this case by him entering a plea of not guilty, so that the prosecution can then offer no evidence.  The issue is whether this can be done as suggested by the defence. 

3.There is a long history to this case which I will not repeat as I have dealt with this in previous decisions.  The defendant is an Australian who on 3 March 2015 was intercepted by the authorities when leaving Hong Kong to return to Australia as a result of a large quantity of drugs having been found in his luggage.  The defendant maintained that he was innocent of the charge and that he had been tricked by members of the drug syndicate to come to Hong Kong and to return to Australia with drugs secreted in his luggage.  The defendant 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.  It is of relevance that because of the nature and state of the case, the defendant was granted bail which permitted him to return to Australia.  It is not in dispute that the defendant is impecunious and only has a limited source of income.  It is for this reason that alternative ways to resolve this case have been explored by the legal representatives for the defendant. 

4.Mr Gerard McCoy, SC, who together with Mr Michael Arthur and Ms Nisha Mohamed, appears for the defendant, submits that the defendant has no personal funds to fly to Hong Kong and return in order to attend to the formality of having his proceedings terminated.  There is no doubt that the termination of the proceedings are in the interest of the defendant and that he is keen for this to happen.  The prosecution are prepared to offer no evidence to the count on the indictment that the defendant faces which would result in an acquittal.  If this cannot take place, then the alternative is that the indictment will be left on the court file and marked “Not to be proceeded with without leave of the Court”. 

5.Mr McCoy argues that the Court has a discretion to permit a trial to proceed in the absence of the accused in special or exceptional circumstances.  He submits that such circumstances would arise where there is informed consent of the prosecution.  He relies on section 49(1) of the Criminal Procedure Ordinance, Cap 221, which is concerned with arraignment of an accused person.  The subsection reads:

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

6.He relies on the expression that the court can “direct otherwise” of the wording of the subsection.  As is apparent, this is an old provision that is clearly limited in its application, addressing the apparel and the appearance of the accused person before the court.  It does not provide, in my view, a power to the court to absent an accused person from his or her arraignment.  I am informed by Mr Neil Mitchell, for the prosecution, that the Prosecution Division do not consent to the accused being absent from his arraignment, and in any event, he submits that the subsection does not give the power to the Court as suggested by Mr McCoy.  I agree.

7.The second suggestion by Mr McCoy, in disposing of this case without the defendant’s attendance, is to arraign the defendant by way of television link.  However, as rightly pointed out by Mr Mitchell, the provision for television link communication with the court is only in relation to the taking of evidence from witnesses.  See sections 79H to 79L, the Live Television Link (Witnesses outside Hong Kong) Rules, and the Practice Direction 9.9.  It does not include the arraignment of an accused. 

8.Accordingly, I am of the view that the two methods suggested by Mr McCoy for the arraignment of the defendant without his attendance are not open to the Court. 

Mr Neil Mitchell, counsel on fiat, for HKSAR

Mr Gerard McCoy, SC, Mr Michael Arthur and Ms Nisha Mohamed, instructed by Robinsons, Lawyers, for the defendant