HKSAR v. Chan Ho

CACC 399/2013

[2021] HKCA 63

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 399 OF 2013

(ON APPEAL FROM DCCC NO 441 OF 2013)

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Before: Hon Macrae VP, McWalters and Zervos JJA in Court

Date of Hearing: 13 January 2021

Date of Judgment: 13 January 2021

Date of Reasons for Judgment: 18 January 2021

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R E A S O N S   F O R   J U D G M E N T

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Hon Zervos JA (giving the Reasons for Judgment of the Court):

Introduction

1.The appellant and his co-defendant, Singh Gursewak, (whom I will refer to by the trial designations as D1 and D2 respectively) were convicted by District Court Judge D’Almada Remedios (as D’Almada Remedios J then was) after trial in absentia of theft of a light goods vehicle and various property contained inside the vehicle (Charge 1)[1]; and fraud by falsely representing that D2 was the registered owner of the light goods vehicle, and offering to sell it for $175,000 (Charge 2)[2].  On 10 September 2013, the judge sentenced D1 and D2 to a total of 4 years’ imprisonment.

2.On 23 December 2019, D1 applied for leave to appeal against conviction and sentence out of time, claiming that he was unaware of his conviction and sentence when he was arrested in 2019.  On 29 July 2020, a Single Judge granted D1 leave to appeal against his conviction out of time, there being no opposition from the respondent.  It was also ordered that D1’s application for leave to appeal against his sentence out of time be heard at the same time as the hearing of the appeal against conviction.

3.At the hearing of this appeal, we allowed the appeal against conviction and quashed D1’s convictions on Charges 1 and 2.  We did not think it was appropriate to invoke the proviso under s. 83(1) of the Criminal Procedure Ordinance, Cap 221, and there being no demur from D1 we also ordered that he be retried and remanded in custody pending his retrial.  We said we would hand down our reasons in due course, and this we now do.

The procedural history

4.In early 2012, both D1 and D2 were arrested in respect of this case by the police and granted bail.  They were jointly charged with the two offences and appeared in the Magistrates Court where they were granted bail by the court.  Their case was transferred to the District Court where they first appeared unrepresented on 28 May 2013.  On 25 June 2013, their case was set down for trial from 26 to 29 August 2013.  D1 was represented by counsel assigned by the Director of Legal Aid, while D2 was unrepresented. 

5.At the first day of trial on 26 August 2013, both D1 and D2 failed to attend court.  The judge issued an arrest warrant against each defendant and adjourned the case for inquiries to be made about their non-attendance.

The decision to proceed to trial in absentia 

6.On 29 August 2013, D1 and D2 again failed to attend court.  The judge was informed that D1 and D2 had not reported to the police station and were not residing at the reported address as required under their respective bail conditions. 

7.The judge in her reasons for verdict set out a history of the proceedings leading up to the non-attendance of the defendants at their trial.  She explained her reasons for proceeding against them in absentia as follows:

“I was satisfied on the evidence before me that the defendants had deliberately breached their bail conditions and had absconded. They were voluntarily absent from the trial without any reasonable explanation. I had not heard that they were absent from the trial because of illness or any other reasonable cause. The defendants had voluntarily abandoned their right to be present at the trial and for that reason I continued in their absence.”[3]

8.The judge proceeded with the trial in the absence of the defendants and on the basis that they had pleaded not guilty to the charges.

The evidence at trial

9.The trial was conducted over the period from 30 August to 2 September 2013.  Some ten witnesses were called, who gave evidence for the prosecution.  The prosecution case was fairly straightforward and can be summarised as follows.  Mr Wong Tak Kee (PW1) was the operator of a recycled goods yard situated in Yuen Long, New Territories.  He employed D1 to work for him on a casual basis as a driver.  On 13 March 2012, Mr Wong initiated the transfer of the ownership of the vehicle to his sister because he had been disqualified from driving.  The transfer procedure had not been completed because his sister had not signed the vehicle registration document.  The unsigned document was placed in a folder which was left in the vehicle.

10.On 21 March 2012, he received a telephone call telling him to go to the Yau Ma Tei police station because someone had handed in his vehicle registration document.  After checking that the document was missing from the vehicle, Mr Wong left his yard and went to the police station.  When he got there he found out that no one from the police station had made a call to him and what he had been told was false.  On his return to the yard, Mr Wong discovered that his yard had been broken into and the vehicle was missing.  He reported the matter to the police. 

11.On 21 March 2012, the ownership of the vehicle had been transferred to D2.  The vehicle registration document bore D2’s name and his identity card number.  On the same day, D1 had made arrangements with a car salesman, Mr Ko Tat Kwan (PW3) that he wished to sell a light goods vehicle on an urgent basis.  Mr Ko had arranged Mr Kit Yi Ying (PW2) to purchase the vehicle at an agreed price of $175,000.  D1 and D2 came to the office of Mr Ko with the vehicle.  D2 claimed to be the registered owner, presenting the vehicle registration document and his identity card.  The vehicle was sold to Mr Kit who paid for the vehicle by cheque in the sum of $175,000.  The transaction was captured by CCTV camera installed in Mr Ko’s office.

12.On 23 March 2012, Mr Kit went to the Transport Department but was unable to register the vehicle in his name.

13.The cheque for $175,000, drawn in favour of D2, had been cashed. The cheque bore the identity card number of D2.  The bank officer who cashed the cheque said that she would check the identity card of the person cashing the cheque to ensure everything was in order before completing the transaction.  

14.Later, Mr Ko and Mr Kit identified D1 and D2 as the persons involved in the sale transaction of the vehicle.

The reasons for verdict

15.On 10 September 2013, the judge handed down her reasons for verdict in which she set out the relevant principles in relation to the offences and analysed the evidence.  She found that all the prosecution witnesses were honest and reliable.  She stated that:

“46. Who was the owner of the LGV on 22 March 2012
At the time of sale of the LGV to PW2 by D2, D2 was the registered owner of the LGV. PW1 and PW12 never sold nor transferred the ownership of the LGV to D2. The signature of PW12 as the registered owner was left blank on VRD. She did not sign it. I was satisfied that someone had forged her signature on the VRD (P9) as well as her signature on the transfer of ownership document (P8) so that the transfer could be made to D2.

47. I was satisfied that although D2 was the registered owner on the VRD he was not the owner of the LGV as he had received the ownership fraudulently.

48. I was satisfied that the LGV belonged to PW1 however the legal owner was PW12 as evidenced by the VRD. Despite the registration being in PW12 name, PW1 had not relinquished his ownership to PW12. PW12 confirmed that she was holding it on trust for PW1. She confirmed if the LGV was sold all proceeds of sale would go to PW1. The facts show that even after the transfer of ownership from PW1’s name to PW12’s name the LGV was still kept at the yard and used solely by PW1.

49. As D2 was not the owner of the LGV and it was a stolen LGV D2 had dishonestly and fraudulently represented to PW2, the buyer of the LGV that he was the owner of the LGV. He had agreed to sell a vehicle to PW2 that was not owned by him for a sum of $175,000. D2 cashed the cheque PW2 made in payment of the LGV.

50. D1 and D2 were indisputably the two who were present at PW2’s office on 22 March. They were captured on CCTV video recording in PW2’s office. They were identified by PW2, PW3 as the persons selling the LGV. PW6 identified D1 and D2. PW1 identified D1. D1 had contacted PW3 on the day the LGV was stolen that he had the vehicle for sale. The very next day D1 and D2 took the car for sale to PW2. Much of the negotiation of the sale of the LGV was conducted with D1 but eventually D2 agreed the price. D1 had driven the vehicle to the station. D2 was a passenger. D1’s fingerprints were found on the driver’s door. D2’s fingerprints were found on the passenger door.

51. Findings
This was a well-planned theft and sale of PW1’s LGV. PW1 had been deceived into going to YMTPS in the morning of 21 March 2012 as he was told someone had found the LGV’s VRD. During his time at the police station PW1 was delayed by the caller saying the VRD would be delivered soon. I was satisfied that during this time the LGV was being stolen from PW1’s yard at Yuen Long. By the time PW1 realised this was a hoax and returned to his yard the LGV was gone.

52. On the same day that is 21 March, that the LGV was stolen :-

(i) the LGV was transferred to D2’s name,

(ii) D1 had called PW3 telling him he had the LGV for sale.

53. On the following day 22 March the LGV was sold to PW2 and D2 cashed the cheque in the amount of $175,000.

54. Both defendants were inextricably involved with the stolen LGV on the day it went missing and the day after when it was eventually sold by them.

55. I drew the irresistible inference that D1 knew that there was the unsigned VRD of the LGV in the vehicle and he played a main part in hatching the plan to steal the vehicle. D1 had knowledge that PW1 had transferred the LGV to PW12 as he had gone to the motor vehicle agent with PW1 and his sister for the processing of transfer of ownership. He drove the LGV and at the material times, the unsigned VRD in PW12’s name was openly placed near the windscreen on the dashboard of LGV. D1’s apparent sympathetic reply to PW1 that his car was lost was a facade that he knew nothing about the stolen car. That was an absolute lie.

  56.  Conclusion
The evidence in this case against D1 and D2 was overwhelming. On all the evidence before me I was satisfied that D1 and D2 stole the LGV and its contents and also fraudulently sold the LGV to PW2. I was satisfied beyond all reasonable doubt that the defendants are guilty of both charges. The defendants are convicted of charges 1 and 2 accordingly.”

The appeal by D2

16.On 5 November 2013, D2 was re-arrested and taken into custody as a result of his conviction and sentence.  He successfully appealed against his conviction on the ground that the judge’s exercise of her discretion to commence the trial in his absence miscarried, resulting in a material irregularity which rendered the trial unfair and the conviction unsafe.  See HKSAR v Singh Gursewak [2015] 1 HKC 498.

17.Lunn VP, giving the judgment of the Court, in Singh Gursewak, set out the relevant principles when deciding whether to proceed with a trial in the absence of a defendant.  He said:

“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 [4] 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 [5], 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 Hayward [6], 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.]” (Footnote’s included)

18.Lunn VP considered that in all the circumstances the judge was entitled to take the view that the appellant had absconded voluntarily.  However, he noted that the judge did not appear to take into account the various considerations relevant to the exercise of the discretion to determine whether to proceed with the trial of an absent and unrepresented defendant: R v Hayward [2001] 1 QB 862; HKSAR v Kwan Wai Keung & Ors [2012] HKCU 1271; and R v Jones (Anthony) [2003] 1 AC 1.

19.As stressed by Lunn VP, a key consideration in the exercise of the discretion to proceed to trial in absentia was the issue of fairness, both to the prosecution and the defence.  He noted that of the multiple factors identified in Hayward, two were of particular relevance in the case that resulted in the judge’s exercise of her discretion having miscarried.  The first factor was whether or not other defendants, who had not absconded, might be prejudiced by the trial being delayed.  This was absent from this case as both D1 and D2 absconded.  The second factor was whether an adjournment might result in D2 being apprehended and the likely length of such an adjournment.  In this case, D2 had been re-arrested soon after he absconded, although D1 was still at large at that time.

20.Lunn VP also assessed whether delay in bringing this case to trial would result in any unfairness in the prosecution of the case.  This required assessing the nature and complexity of the case in terms of the evidence and likely issues, and any other sensitive or relevant considerations. He held that this was a straightforward case and none of the evidence was subject to the risk of the failure of fading memory.

The principles in Chow Ho Yin

21.Subsequent to the decision of Singh Gursewak, the Court of Final Appeal in HKSAR v Chow Ho Yin (2020) 23 HKCFAR 1, had occasion to review the principles that apply when a court exercises its discretion to commence or continue a trial in the absence of a defendant.  In the judgment of McLachlin NPJ, with whom the other judges agreed, the principles in Singh Gursewak were largely repeated but with further elaboration by also addressing how an appellate court should address the matter. She said:

“17. The authorities establish a number of factors that should be considered in determining whether a trial should be continued in an accused’s absence. They include the following:

•  Was the accused’s absence voluntary or involuntary? Where an accused is absent because of illness, the absence is generally treated as involuntary.

•  Has the accused waived the right to be present at his trial? This is a question of fact to be determined in all the circumstances.

•  Would an adjournment resolve the problem of the accused’s absence? If so, would the adjournment required be short or long? Would an adjournment impact negatively on the conduct of the trial, for example, the effect of delay on the memory of witnesses?

•  Is the accused legally represented? If so, to what extent are his legal representatives able to receive and act upon instructions in his absence?

•  Would the accused be prejudiced by his absence, having regard to the nature of his defence and the evidence against him?

•  Would there be a risk of the jury reaching an improper conclusion about the accused’s absence?

18. The factors to be considered cannot be reduced to an exhaustive or conclusive checklist. It is clear, however, that a judge in exercising the discretion should carefully consider all the relevant circumstances arising in the case at hand with the ‘overriding concern … to ensure that the trial, if conducted in the absence of the [accused], will be as fair as circumstances permit and lead to a just outcome.’[7] It is also clear that the judge should proceed with ‘utmost care and caution’.[8] The decision to proceed with the trial in the absence of an accused should only be in ‘rare and exceptional cases’,[9] and if an accused’s absence because of illness ‘it would very rarely, if ever, be right to exercise the discretion in favour of commencing the trial, at any rate unless the defendant is represented and asks that the trial should begin.’[10] Indeed, it has been said that the discretion ‘should be sparingly exercised and never if the accused’s defence will be prejudiced by his absence.’[11]

19. Where an appellate court concludes that the discretion has been exercised improperly, the remaining question is whether, viewing the trial as a whole, the absence of the accused rendered the trial unfair. See Jones.”[12] (Footnotes included)

22.McLachlin NPJ went on to note that the right to be present at one’s trial was part of the broader fair trial right.  However, she noted that not every departure from the norm will require a new trial.  She explained that in appropriate cases the proviso in s 83(1) of the Criminal Procedure Ordinance (Cap 221) may apply if the Court of Appeal was to consider that no miscarriage of justice had actually occurred.[13]

The appeal by D1

23.Ms Sezen Chong, for the appellant, contended that the judge wrongly exercised her discretion in determining to conduct the trial in the absence of D1, in that she made her determination primarily on the consideration that D1 had deliberately and involuntarily absented himself from the trial; and she failed to consider or weigh other factors for a trial in absentia as laid down in the relevant authorities.  She submitted that the judge’s discretion having miscarried, her decision to proceed with the trial in absentia was a material irregularity which rendered the trial unfair and the convictions unsafe.

24.Ms Chong, relied heavily on the reasoning of the judgment of this Court in Singh Gursewak,which she submitted applied with equal force to the circumstances of D1.  She essentially complained that the judge did not take appropriate reasonable measures by simply adjourning the case for three days, and then failing to properly exercise her discretion when deciding whether to try D1 and D2 in their absence.

25.Whilst Ms Hermina Ng, for the respondent, did not oppose the grant of leave to D1 to appeal against his conviction, she argued the appeal should be dismissed because the judge had made the correct decision, albeit in doing so she had not exercised her discretion in accordance with the relevant legal principles.  She also argued that the circumstances of the case against D1 differed from the one against D2.  She submitted the distinguishing circumstances included;

(i)  D1 had prior convictions and was familiar with the court processes;

(ii)  D1 was legally represented on plea day in the District Court and through counsel entered pleas of not guilty;

(iii)  D1 was aware of the trial dates and by his conduct intended to waive his right to legal representation;

(iv)  D1 was re-arrested on 29 November 2019, more than 6 years after he absconded;

(v)  the offences of theft and fraud were primarily based on the evidence of Mr Wong and Mr Ko and the lapse of time was likely to affect their memories about relevant events;

(vi)  D1 would not have been disadvantaged in giving his account of the events because of the evidence against him; and

(vii)  the judge conducted the trial in absentia by reminding the prosecution that it had to prove its case by strict proof.

26.Ms Ng contended that the trial in D1’s absence was a fair one and the judge’s exercise of her discretion had not miscarried.

Discussion

27.It is a fundamental principle that a court when exercising a discretion should do so judicially in accordance with relevant law and principles.  The decision to commence or continue a trial in the absence of a defendant should be approached with great care and circumspection, bearing in mind the principles that apply and the fundamental objective of ensuring that a fair trial takes place.

28.This Court in Singh Gursewak concluded that in all the circumstances the judge’s exercise of her discretion to proceed to trial in the absence of D2 had miscarried.  Even though it was an appeal from D2, we see no justification to distinguish that decision in relation to D1. 

29.The principal concerns of the Court in Singh Gursewak were that the judge did not avert to any authority relevant to the issue and that her primary consideration was that the two defendants had “deliberately breached their bail conditions and had absconded”.[14]  While the Court accepted the judge was entitled to take the view that the defendants had absconded voluntarily, it was emphasised that relevant to the exercise of the discretion to proceed to trial was the issue of fairness, both to the prosecution and the defence.  It was mainly because of the failure of the judge to properly consider the issue of fairness from the perspective of the defence and appropriately identify and weigh relevant factors that the Court concluded the discretion had miscarried.[15] It was also noted that the judge did not address what were the circumstances that made this a rare and exceptional case to exercise the discretion in favour of the trial taking place in the absence of the defendants.  In its overall assessment of the case, the Court felt that because of the nature and state of the case, it would not have been affected by further delay, bearing in mind that the consequence of proceeding to trial without the defendants would result in the inevitable disadvantage that they would not be able to give their account of events.[16] 

30.One aspect in this case that we feel we should emphasise was the decision of the judge to adjourn the case for three days only and then to immediately proceed to trial in the absence of the defendants. Whilst the judge was entitled to take into account that they had breached their bail and had in all likelihood absconded, proceeding to trial within three days was not a reasonable or realistic step in the circumstances of this particular case.

31.We were also of the view that it was not appropriate to invoke the proviso, notwithstanding that the case against D1 can be fairly described as a strong one. 

Conclusion

32.For the reasons that we have set out, we were satisfied that the judge’s exercise of her discretion miscarried so that there was a material irregularity which rendered the trial unfair and the convictions unsafe.  We accordingly allowed the appeal and quashed the appellant’s convictions.

33.There being no opposition to the appellant being retried, and having regard to all the circumstances, particularly the interests of justice, we ordered that the appellant be retried on a new charge sheet in relation to Charges 1 and 2.  There being no application for bail, we remanded the appellant in custody pending his retrial.

Ms Hermina Ng, ADPP (Ag) of the Department of Justice, for the respondent

Miss Sezen Chong, instructed by Gallant, assigned by the Director of Legal Aid, for the appellant

[1] Contrary to section 9 of the Theft Ordinance, Cap 210.

[2] Contrary to section 16A of the Theft Ordinance, Cap 210.

[3] Reasons for Verdict, at [64].

[4] HKSAR v Kwan Wai Keung & Ors, para 6.

[5] R v Jones (Anthony); p 13 D-E, para 14.

[6] R v Hayward, para 22.

[7] Jones, [14].

[8] Jones, [13].

[9] R v Hayward, [22(4)].

[10] Jones, [13].  Although this is couched in the context of commencing trial in the accused’s absence, Lord Bingham also specifically recognised that the same direction exists regardless of whether the question is one of commencing or continuing a trial in the accused’s absence, at [10].

[11] R v Pearson.  The Independent 25 February 1998 CA, [1998] Lexis Citation 3879, p.13, citing R v Houson (1982) 74 Cr App R 172, 179.

[12] Although their Lordships diverged on the question whether or not the lower court was correct in finding that the accused had waived his right to be present at his trial by absconding, the disagreement did not have any bearing on the unanimous decision to dismiss the appeal on the basis that the accused had, in all the circumstances, “enjoyed his Convention right to a fair trial”: [15].

[13] Chow Ho Yin, at [20].

[14] Singh Gursewak, at [31] and [32].

[15] Ibid., at [32] and [34].

[16] Ibid., at [35] to [40].