HKSAR v. Tsui Po Wan

HCMA 507/2018

[2019] HKCFI 752

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 507 OF 2018

(ON APPEAL FROM TMS 16760 OF 2015)

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J U D G M E N T

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1.The appellant is absent from his hearing of appeal today.  This is a refixed hearing of the appellant’s appeal against conviction for a charge of careless driving.  The first date of hearing of this appeal was on 21 December 2018.  The appellant was absent at that hearing of appeal.  It was therefore re-fixed to today.

2.The officer in charge of this case together with his police officers served the notice of today’s hearing on the defendant at his registered address with the Transport Department on 9 February 2019 by posting the documents in the registered address post box.  Despite the police officers ringing the doorbell of the appellant’s registered address there was no answer.

3.In addition, the officer in charge of this case has made several phone calls to the appellant prior to today’s hearing.  The calls were not answered.  The police officer did, however, leave voicemail messages, informing the appellant of today’s hearing and the time of hearing.  The phone numbers which the police had to contact the appellant were previously used by them to contact the appellant, and they were able to contact the appellant.

4.This case has had a history in that this offence of which the appellant was convicted was in fact 23 June 2015, now almost some four years ago.  He was originally convicted, he appealed the conviction and the appeal was allowed in 2017.  It was sent back to a magistrate for a retrial.  Upon the retrial before the magistrate, Miss May Chung, the appellant was convicted again on 20 September 2018.

5.On 2 October 2018, the appellant in the Form 101 gave notice of appeal to a judge against that conviction.  He attached to it seven grounds of appeal.  I am informed by Mr Eric Yung, public prosecutor for the Director of Public Prosecution who is representing the respondent in this appeal, that the telephone number has been the number used to contact the appellant for a long time. 

6.In view of the absence of the appellant in this hearing today before this court, Mr Yung has applied to this court to dismiss the appellant’s appeal for want of prosecution.  He has submitted to me in support of his application an extract from Archbold at chapter 7-51 which heading is “Presence of the Appellant at the Hearing of the Appeal”.  In that paragraph, it states: 

“It has been suggested that an appellant who does not attend his appeal is presumed to have abandoned his appeal. If the absence of the appellant is unexplained, the court, in the exercise of its inherent discretion, may dismiss or adjourn the appeal.”

7.Mr Yung has also relied upon the case of R v Lau Tak Mong [1994] 2 HKCLR 260 which is also mentioned in that same paragraph of Archbold. 

8.This appeal has already been adjourned once before.  The police have tried their very best to contact the appellant but have failed, and the police have also left the requisite documents informing him of the date of this appeal in his letterbox which is the registered address of the Transport Department.  It is noted that it is an offence not to inform the Commissioner of Transport of a change of address after 72 hours.  Therefore, a person must inform the Commissioner of Transport if he has changed his address within 72 hours.  The appellant has not given notice of a change of address. As this case has been adjourned once before, I do not consider it appropriate to adjourn this hearing once again. 

9.The next question for me is whether I should dismiss this appeal.  I have considered this case.  The appellant has not attended this appeal.  I am satisfied that he has had notice of this hearing of appeal.  There is no explanation for his non‑attendance. In the circumstances, as he is absent, he is presumed to have abandoned his appeal, and in those circumstances, I dismiss his appeal.

Mr Eric Yung, PP of the Department of Justice, for the respondent

The appellant was not represented and did not appear