HKSAR v. Dialani Prakash Khubchand

HCMA 122/2022

[2022] HKCFI 3349

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 122 OF 2022

(On appeal from FLFS 35/2021)

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BETWEEN

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Before:  DHCJ Woodcock in Court

Date of Hearing:  12 October 2022

Date of Judgment:  12 October 2022

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J U D G M E N T

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1.The appellant is absent from the hearing of his appeal today. This is a refixed hearing of the appellant’s appeal against conviction and sentence for a summons of failing to wear a mask without lawful authority or reasonable excuse in a public place as specified by the Secretary for Food and Health under section 3(1)(a)  of Cap 599I.

2.The first date of this appeal was 24 June 2022.  The appellant was absent at that hearing of his appeal.  It was refixed to today.  On that first occasion, the appellant informed the court by telephone that he had been informed about the notice of hearing, but was out of Hong Kong and would not be back in Hong Kong until the end of July.  He indicated he wanted to pursue his appeal.  Since then no subsequent correspondence, be it a letter or fax, has been received from the appellant.

3.His appeal was adjourned to today, 12 October 2022, with a second notice of hearing posted on 10 August 2022.  It was served by ordinary post, registered post and subsequently, by court bailiffs, who were unable to serve this notice at the defendant’s registered address.  I have had sight of an affidavit of non-service from the bailiff’s office.  There was no answer at his registered address.  Many attempts made to call the defendant’s telephone number this week have been futile.

4.The appellant was convicted on 7 March 2022.  After a trial, he was ordered to pay a fine of $12,000.  I have read the transcript provided in the appeal bundle and the magistrate’s statement of findings.  There were no grounds of appeal filed.

5.I am informed by Mr Lai, representing the respondent in this appeal, that there is an application to dismiss this appeal for want of prosecution.  This would be on the basis that where an appellant does not attend his appeal, he is presumed to have abandoned his appeal.  If the absence of the appellant is unexplained, the court may dismiss or adjourn the appeal in the exercise of its inherent discretion. 

6.I did adjourn the appeal once on the basis that the appellant informally told the court over the telephone why he was absent.  I have had no subsequent correspondence as I have said.  As this case has been adjourned once before, I do not consider it appropriate to adjourn this appeal once again. 

7.I have considered this case.  I have considered whether I should dismiss this appeal. The appellant has not attended this appeal.  I am satisfied that the notice of this appeal was served by ordinary and registered post to his last known address.  Therefore, there is no explanation for his non-attendance.  In the circumstances, as he is absent, he is presumed to have abandoned his appeal. 

8.In those circumstances, I dismiss this appeal.

Mr Lai Kin-hei Lucas, Senior Public Prosecutor (Ag) of the Department of Justice, for the respondent

The appellant acting in person, being absent