The Queen v. Chau Tat Lung

CACC000282/1983

BETWEEN

_________

Coram: Hon. McMullin, V.-P., Li .& Silke, JJ.A.

Date: 13th May, 1983

__________

JUDGMENT

__________

McMullin, V.-P. :

1. The applicant was convicted after trial upon charges of blackmail and theft and received sentences of two and a half and one and a half years' imprisonment respectfully, plus a fine of $4,000.00.

2. The circumstances of the case are unusual. Although there was a trial, the applicant refused to cross-examine any of the witnesses and did not give evidence. The evidence which was adduced disclosed, if it was correct, a very unpleasant course of conduct on the part of the applicant, involving the wife of the person whom he knew and from whom with threats based upon triad activity endeavoured to extract sums of money initially in the region of $10,000.00, ultimately a sum of $3,000.00 odd being handed over.

3. What gives us concern however, and what is the basis of the applicant's present application, is that his refusal to either defend himself or cross-examine witnesses was, as he contends, due to the fact that he was refused an adjournment in circumstances which he maintains would have justified an adjournment. Being bereft thus, as he maintains, unjustly, of legal assistance, he decided not, as the Judge himself put it, to co-operate in the trial.

4. In proceeding with the trial which took place do the 7th of March of this year, the trial Judge noted that the case had been put down for hearing in the running list on the 26th of November, 1982 but that because the applicant could not then be contacted it was put into the December running list. He goes on to say that when on the 22nd of January, the case was put down for hearing on the 7th of March, the accused could not be served as he was in China. That appears to be so. He was eventually told the date of hearing - by then fixed for the 7th of March - by the Bailiff's office on the 25th of February. The Judge goes on to say that the applicant claimed that he was short of money and too busy with his private affairs to approach a solicitor until the 5th - two days prior to the hearing date. The applicant told the court when he appeared on the 7th that the solicitors told him it was too late to accept instructions and that he should apply for an adjournment.

5. The Judge went on to say:

"The victim has now been to court on three different occasions and I decided that the case must proceed and it will be incorrect to grant the accused yet another adjournment."

6. We have consulted the record of the proceedings in the District Court from the 5th of July onwards and what appears to have happened is as follows. On that date, the applicant was in court for the purpose of plea being taken and he pleaded not guilty to both the charges. Thereafter, sometime between July and the 26th of November, the case was put in the running list and the 26th of November was fixed as the hearing date. The applicant did not appear on that date, but he had not been served. We have no indication on the record as to the putting of the case back in the running list for hearing in December, though presumably that was done administratively without parties being summoned to appear for that purpose. Then on the 26th of January, 1983, again by administrative direction, and without appearance in court on the part of anybody, the case was fixed for trial upon the 7th of March. The court issued instructions that the applicant should be informed of the hearing date. It appears that the Bailiff was able to contact the' applicant by telephone on the 25th of February and on that date he was informed that the hearing date was the 7th of March. It is well to recapitulate at this point, therefore, that between the 5th of July, when he appeared in court on the first occasion, and the time when he was contacted by the Bailiff, in February, there had been no intermediate appearances by the applicant in response to any process and that this would seem to be due to the fact that no notice, summons or other process was ever served upon him.

7. On the 26th of February, the day after he was informed of the hearing date, his business premises were burnt down having been involved in a very serious fire which took place in the area. Whether this was drawn to the Judge's attention does not appear from the record but it seems unlikely in view of the Judge's comment on the applicant's reasons for not consulting solicitors before the 5th of July.

8. We are informed by Mr. Mullick who appears for the applicant today - and it would seem not unlikely - that the financial affairs of the applicant suffered a severe setback as a result of that disaster. However he endeavoured to instruct solicitors on the 5th of March. As we have seen, the solicitors thought that too short an interval was available for them to take up the case and they advised him to appear in court and ask for an adjournment.

9. It seems therefore that the Judge's disinclination to grant a further adjournment may well have been based upon a mistaken understanding of the circumstances which I have just recited. It is likely that the Judge was not fully apprised of all the relevant facts.

10. We have been given no reason to believe that the defendant was endeavouring to avoid service of any process. Certainly he was not served with notice to appear on any of the intermediate dates to which I have referred. We do not know - and the record does not disclose - whether the complainant did attend court on any of the dates after the 5th of July, but even if she had done so, and the case was not able to proceed, that was because the applicant had not been served. Without any proof that that was due to his wilful default, he is scarcely to be blamed for the fact that she did appear, if that was the case.

11. In all the circumstances, we feel that the applicant may have suffered from some degree of misunderstanding which caused him to adopt his unusual stance in face of the evidence and the in the interests of justice he should be given an opportunity to be professionally defended. We grant the application and treating this hearing as the hearing of the appeal, we allow the appeal and set aside the conviction and sentence and order that the case be tried again upon the same charges.

Representation:

Mr. John Mullick (Y.K. Poon & Co.) for Appellant .

Mr. A.P. Duckett for Respondent/Crown.