The Queen v. Chu Miu-tak and Another
Read the full judgment text of DCCC 258/1980 on BabelCite. This District Court judgment.
1. In this trial the 1st defendant was charged with burglary contrary to Section 11(1) of the Theft Ordinance, Cap. 210. It was alleged that, together with the 2nd defendant, between the 22nd and 23rd of September, 1980 he entered as a trespasser a building known as 276 Gloucester Road, Hong Kong and stole therein 413 wrist watches, 135 silver bracelets, 35 gold bracelets and 111 silver chains. These articles were valued at $161,200.
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DCCC000258/1980 Criminal law - trial - presence of defendant - defendant absconding during course of trial while on bail - whether Hong Kong Courts have a discretion to continue trial in defendant's absence - general principles governing exercise of discretion - defendant's remedy if later appears absence involuntary. IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA CRIMINAL JURISDICTION 258 CASE NO. 229 OF 1980 -----------------
----------------- Coram: H.H. Judge Cruden in Court Date of Judgment: 27th March 1981 ----------------- RULING ----------------- The Facts 1. In this trial the 1st defendant was charged with burglary contrary to Section 11(1) of the Theft Ordinance, Cap. 210. It was alleged that, together with the 2nd defendant, between the 22nd and 23rd of September, 1980 he entered as a trespasser a building known as 276 Gloucester Road, Hong Kong and stole therein 413 wrist watches, 135 silver bracelets, 35 gold bracelets and 111 silver chains. These articles were valued at $161,200. 2. The trial commenced on the 16th day of March, 1981. Both defendants had earlier been granted bail. The 2nd defendant failed to appear but the trial continued against the 1st defendant who was present in person and represented by Counsel. The 1st defendant pleaded not guilty and his bail was extended for the duration of the trial. The prosecution evidence and the determination under the alternative procedure whether certain statements made by the 1st defendant were voluntary and admissible, occupied the first two days. At the end of the second day, namely the 17th day of March 1981, Counsel for the 1st defendant informed the Court, in the presence of the 1st defendant, that the 1st defendant would not be giving evidence or calling any witnesses. The Court then adjourned to 10 a.m. on the 18th day of March, 1981 when it was to hear the closing addresses. 3. On the 18th day of March 1981 the 1st defendant failed to appear. His Counsel informed the Court from the Bar that the 1st defendant's mother, who was also his surety, was in Court and had indicated that the 1st defendant left home the previous evening to go out drinking and had not returned. She did not know where he was. Counsel asked leave to withdraw and this was granted. A warrant of arrest in respect of the 1st defendant was issued forthwith and his cash bail of $10,000 was ordered to be forfeited. The trial was then adjourned to 10 a.m. on the 20th day of March 1981 when the surety was ordered to appear and show cause why the $7,500 she had paid into Court in her capacity as surety should not also be forfeited. 4. When the Court resumed on the 20th day of March 1981 the surety was heard and orders were made disposing of the $7,500. The Crown then applied for the trial to continue in the absence of the 1st defendant. I was referred to R. v Jones (No. 2) (1972) 2 All E.R. 731 and to Archbold (40th Edn) 330a at page 178. I reserved my ruling on this application until today in order to consider the matter further - as Counsel was unable to cite any reported decision in Hong Kong where any such application had been either made or granted - and in the hope that the 1st defendant might be re-arrested in the interim. I am informed this morning that the 1st defendant has not been located. It therefore falls to me to rule on the Crown's application. 5. Both Archbold (supra) and 10 Halsbury (3rd Edn.) 399 para. 722 list the circumstances when a trial may proceed in the absence of a defendant. In this particular case I am only concerned with the factual circumstances where a defendant, during the course of a trial, fails to answer to his bail. In such circumstances two separate questions arise for decision. First, has a Hong Kong Court a discretion to proceed. Secondly, if it has a discretion should it, on the instant facts, exercise that discretion by ordering the trial to proceed in the defendant's absence? Whether discretion to allow trial to continue 6. As to the first question the English Court of Appeal in R. v. Jones No. 2 (1972) 2 All E.R. 731 clearly recognised the existance of the discretion. It held that in certain exceptional circumstances a trial might proceed in a defendant's absence. The general rule was held to be that a defendant has the right to be present throughout his trial but if a defendant voluntarily waived that right the judge had a discretion to continue the proceedings in the defendant's absence. The facts before the Court of Appeal in that case were that the defendant failed to appear after the prosecution case had concluded. The defendant's counsel indicated that it had been intended to call the defendant and other witnesses for the defence. On the day he failed to appear a female friend present in Court stated that she had had a message from the defendant that the trial was "going bad." The trial judge allowed the trial to continue in his absence. When, after other defendants had given evidence and it was the proper stage for the absent defendant to give evidence, his Counsel withdrew. At the end of the trial the absent defendant was convicted and sentenced to terms of 3 and 5 years imprisonment. Later he was extradited from Denmark. In the course of an application for leave to appeal out of time, unparticularised allegations were filed, that threats had been made to him the night before he failed to appear and these had resulted in his non-appearance. 7. The Court of Appeal was satisfied that Jones had deliberately jumped his bail. It was further of the view that the stricture of the Criminal Law Revision Committee in its Seventh Report CMND. 2659 p. 17 para. 61 that "the power to continue a trial in the absence of the accused would be used sparingly and only when this would not prejudice the defence" could not have been intended to apply to cases where by jumping bail a defendant has deliberately opted not to appear and proceed with his defence. 8. The Court of Appeal, cited with approval, the 19th Century Australian case of R. v. Abrahams (1895) 21 V.L.R. 343 in which it was held that the right of an accused to be present remains with the accused so long as he claims it, but when he waives that right, the discretion of the trial judge whether to continue the trial in the accused's absence comes into play. The factsoof the Victorian case were that the defendants were suffering from illness. The Court gave them express permission, whenever they chose, to be absent from Court. After the jury had retired they returned for a further discretion and then later returned to deliver their verdict of guilty. On both those occasions the defendants Counsel were present but the defendants, pursuant to the earlier granted permission, were absent. This was not therefore a case where defendants had disappeared while on bail. Nevertheless the judgments expressly consider this possibility Williams J., observing:-
9. The question apparently remained obscure for the next 77 years. For when in 1972 the English Court of Appeal had to consider that very same factual situation it was left to rely on R. v. Abrahams in which it considered the current position to be "admirably stated." 10. I am well satisfied that the common law principles set out in R. v. Abrahams and reaffirmed in R. v. Jones (No. 2) apply equally in Hong Kong. I therefore hold that a Hong Kong Court has a discretion to allow a trial to continue in the absence of a defendant where that defendant has voluntarily and deliberately absented himself from the trial by absconding while on bail. 11. Has the present defendant so absconded? In R. v. Jones (No. 2) the trial judge held that Jones had absconded where the facts were that he failed to appear after the whole of the prosecution case had been completed and his female friend - whom he later married - indicated that the message she had received from him was that the trial was "going bad." Later when the matter came before the Court of Appeal there was the further allegation that the defendant had been threatened, and had actually failed to appear out of fear. The Court of Appeal did not think that that bare allegation negatived any finding that his absence had been voluntary. No doubt it was also influcenced by the fact that he only eventually reappeared pursuant to a warrant in extradition proceedings. 12. Here the defendant disappeared at similar but even later stage of the trial. All the evidence had been adduced. A contested cautioned statement had been admitted. The evidence of the surety does not suggest that the defendant's absence was other than voluntary and that surety was his mother with whom he was living. I appreciate that in these circumstances it is a matter of inference. However, after reviewing all the evidence I am satisfied beyond reasonable doubt that his failure to reappear was voluntary and deliberate. Whether grounds to exercise discretion 13. In view of that finding, it follows that the Court has a discretion whether to allow the trial to proceed in the defendant's absence. I now turn to consider whether I should exercise that discretion in favour of the Crown's application. 14. The paramount consideration is whether it would be in the interest of justice to allow the trial to so continue. As Hood J. declared in R. v. Abrahams : -
15. I reject the view that mere convenience, by itself, is a relevant factor. I therefore put to one side and ignore as irrelevant, in the present case, the no doubt very practical considerations that it would be far more convenient for the witnesses, the prosecution, the Court and its officers to proceed to verdict in the present trial in the 1st defendant's absence. 16. In coming to this conclusion I am not unmindful of the observations in 1972 Criminal Law Review 594 where in referring to R. v. Jones (No. 2) and the Seventh Report of the Criminal Law Revision Committee the following editorial commentary is made :-
17. It does not seem, however, that the Report goes that far. The Report does not expressly deal with the question of illness and at least on the basis of R. v. Abrahams it would seem that in that event the consent of an involuntary absentee would be required. For where due to illness, accident, kidnapping or established threats, the absence of a defendant were involuntary the discretion would not on the authorities already cited exist. In such cases the consent of the involuntary absentee would seem to be necessary. The "convenience" the Committee refers to as a possible criteria was unlikely to have included, in the absence of consent, the mere convenience of the prosecution or of the witnesses or of the Court. The paramount consideration must always be, "the due administration of justice." The due administration of justice necessarily requires respect for and protection of the rights of a defendant. This is echoed in the words of the Criminal Law Revision Committee in its Seventh Report. Although, as the comments of Roskill L.J., already cited emphasise, that principle is always subject to that protection being affected by waiver or other conduct on the part of a defendant. Absconding while on bail is clearly conduct by which a defendant may be held to have waived his right to be present at his trial. Any possible prejudice must be assessed in these terms. 18. On that basis would the defendant here be prejudiced? Certainly the trial would be less affected by his absence than it was in R. v. Jones (No. 22). For there the defendant had intended to give evidence and call witnesses but absconded before doing so. The Court therefore did not have the benefit of that evidence. The evidence, in its totality, was therefore less than the evidence it would have received had the defendant not absconded. But here the whole of the prosecution evidence has been completed, there was no submission of no case and the Counsel for the defendant, before the defendant absconded, had informed the Court that the defendant would not be giving evidence or calling witnesses. So even had the defendant remained until the trial ended the Court would not have heard any additional evidence. His absence, would not therefore affect or reduce the totality of the evidence to be adduced. The only factual difference is that because of his absence there would be no closing submissions on his behalf. Without, understating the at times immense value of such submissions, that is a far less important factor than the reduction of the amount of evidence adduced as occurred in R. v. Jones (No. 2). But again, as in R. v. Jones (No. 2) the fact that no closing submissions may be made is due to the same reason as in the latter case, there was no evidence adduced by the defendant, namely his voluntary act of absconding. In other words, the lack of any closing submissions follows solely from the defendant's election to be absent. 19. The facts in R. v. Jones (No. 2) as already noted, were more exceptional than in the present case for in that case the whole of the evidence had not been concluded whereas in this case the whole of the evidence has been concluded. The present facts more closely correspond with the third type of case mentioned by Counsel, for Jones, where it was conceded, the Court not only had a discretion but would probably allow a trial to continue. This was referred to by Roskill L.J. thus :-
20. The defendant here was present for the whole of the prosecution evidence and the evidence called under the alternative procedure including his own witness. The defendant was given the opportunity to give evidence or call witnesses on the general issue. He elected, when represented by Counsel, to remain silent and not call any witnesses. After that election and only after that election he absconded. There has been no material development since he absconded. 21. So the position I have before me is that the whole of the evidence in a criminal trial has been adduced in the presence of a represented defendant after which he absconds. The charge is serious. The value of the stolen property is substantial. A considerable amount has been recovered. While the defendant may be found, it is possible, on the other hand that he may never be located or it so, only after a considerable period of time has elapsed. It would seem contrary to the interest of justice and the public interest - which are really identical - that a verdict on this evidence should be postponed to such an uncertain future date. To the contrary, justice would seem to demand that the trial should be completed without delay, a verdict delivered expeditiously and all consequential orders made that may then be necessary. For the Court, having heard all the evidence, to defer to deliver a verdict simply because the defendant has elected at this late stage to abscond, would amount to a negation of judicial responsibility. To decline to proceed would amount to an obsequious submission to strict formalism at the expense of the higher interests of justice. The practical realities - including the interest of the defendant himself in having the uncertainty of the outcome of trial resolved - as well as the cases I have referred to, all argue against such an inhibited judicial approach. For these reasons I therefore rule that the trial shall continue in the absence of the 1st defendant. 22. In coming to this conclusion I am also fortified by the knowledge that if the 1st defendant were to reappear and if it then became apparent that his absence was involuntary, it would always be open to him to appeal, if necessary out of time, on the basis of those new facts, as was expressly envisaged by Cooke J. when giving the judgment of the Court of Appeal in R. v. Jones (1971) 2 All E.R. 731.* DATED this 27th day of March 1981.
Representation: *Jones was the accused in two related matters which came before the Court of Appeal and were reported by the All England Law Reports in successive years, but by a printing coincidence, in the same respective volumes and at the same page : -
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