R. v. Lau Tak Mong

HCMA000539/1994

Magistracy Appeal
1994, No. 539

Headnote

Criminal Law - Appellant bailed pending appeal is represented by counsel but fails to appear at the hearing of his appeal - He had been sentenced to 12 months' imprisonment by a magistrate.

Held : The Court is not a schoolroom and does not entertain matters academically. Following the practice of the English Court of Appeal in Flower [1965]50 Cr.App.R.22 the appeal was adjourned. The appellant had broken his conditions of bail. A warrant was issued for his arrest.

(HIGH COURT)

(Magistracy Appeal No. 539 of 1994)

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Coram: Hon Litton JA in Court sitting as an additional High Court Judge

Date of hearing: 27 September 1994

Date of judgment: 27 September 1994

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J U D G M E N T

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Litton, J.A.:

1. This is the appeal of Lau Tak-mong against conviction. He is represented by Mr Wilson Chan of counsel on the instructions of the Director of Legal Aid. When the appeal was called on this morning the appellant was absent.

2. The appellant was convicted by a magistrate at the Eastern Magistracy, Mr AR Wright, on 22 April 1994 on one charge of possession of dangerous drug contrary to section 8(1)(a) of the Dangerous Drugs Ordinance.

The magistrate adjourned the matter of sentence to 6 May 1994 when he imposed a sentence of 12 months' imprisonment.

3. After the conviction and sentence there was an unusual turn of events. After the appellant had lodged his notice of appeal the magistrate heard another matter which involved the same arresting officer and as a result of the evidence in that other case the magistrate came to doubt whether his conviction of the appellant in this case was safe and satisfactory. Accordingly the magistrate admitted the appellant to bail pending the hearing of his appeal to the High Court. When the case was called on this morning, the appellant was absent.

4. He had on 13 May 1994 entered into a recognizance to prosecute his appeal and had acknowledged himself indebted to Her Majesty The Queen in the sum of $250 if he failed to abide by the conditions endorsed in the recognizance. The relevant condition is that he would surrender himself "at before and to a Judge of the High Court" at the hearing of his appeal. As things appear before me now he is in breach of this condition.

5. The question I have to decide is what I ought to do in the circumstances of the case. Counsel have been most helpful. Mr Chan has satisfied me that technically I do have the jurisdiction to entertain the appeal against conviction even in the absence of the appellant. Plainly, however, such a jurisdiction ought not to be lightly exercised. He has referred me to the case of Flower (1965)50 Cr.App.R. 22 where there were three appellants, two of whom were represented by counsel but Flower was unrepresented. Flower was absent at the hearing of the appeal. He had escaped from custody after the notice of appeal had been lodged but before the date of hearing.

6. As to the practice of the court where an appellant escapes and fails to attend the hearing of his appeal the Court of Appeal said this at 34:

"The practice of this court where an appellant escapes, and for that reason is not present when an appeal is called on, is either to adjourn the appeal or dismiss it, according to the justice of the case."

7. There seems to me good reason for such a practice. The Court is not a schoolroom and does not entertain matters academically. If this appeal is dismissed the consequence must in principle be that the appellant should immediately begin serving the sentence of 12 months' imprisonment imposed by the magistrate, since there is no appeal against sentence remaining. But the appellant is not here. In these circumstances, would the due process of law and the dignity of the court be harmed if the appeal proceeds? Flower was an exceptional case. There the court in fact did go into the merits of the matter before it since the appeal of the two co-accused had in any case to be entertained. The points taken on behalf of the two co-accused were equally valid vis-a-vis Flower. Once the court had resolved to allow the appeals of the other two persons, there was no point in adjourning Flower's appeal and keeping it alive. Such circumstances are absent in the present case.

8. In my judgment the proper order for me to make is simply to adjourn the hearing of Lau Tak-mong's appeal, which I hereby do.

9. There is power vested in me by virtue of sections 18A and 119(1)(d) of the Magistrates Ordinance to issue a warrant for Lau Tak-mong's arrest. Mr Veltro for the Crown has informed me that not only has the appellant failed to appear at the hearing of this appeal contrary to the terms of his recognizance to prosecute the appeal; he has also recently failed to appear to answer charges in four cases at the Tuen Mun Magistracy. They are respectively cases No. TM 1235/94, TM 1633/94, TM 1764/94 and TM 1292/94. It seems to me right in the circumstances that I should exercise my power under section 18A of the Magistrates Ordinance to order the issue of a warrant for the arrest of the appellant.

10. The warrant would be in this form: It would be addressed to all police officers and the Commissioner of Correctional Services, and recites the fact that the appellant in the High Court has been released by a magistrate on bail and the court has ordered that a warrant be issued for his apprehension. The warrant commands the police officers forthwith to apprehend the appellant and to bring him to the Commissioner of Correctional Services and there deliver him with this warrant into the custody of the Commissioner. The warrant then requires the Commissioner of Correctional Services to receive him into custody and to keep him there until he duly completes his sentence or until further order of the court.

11. The effect of the order is this. If the appellant seeks nevertheless to prosecute his appeal he can apply to the court to revive the hearing which has been adjourned; in the meanwhile he stays in custody, serving out his term of imprisonment of 12 months. I acknowledge my thanks to Mr Chan and Mr Veltro for their assistance, given at very short notice.

Representation:

Mr Wilson Chan (DLA) for Appellant

Mr Frank Veltro (Crown Prosecutor) for Respondent