Hong Yuk-lin v. The Queen

CACC000988/1981

Trial in absence of accused. Judge has discretion if accused voluntarily waives right to be present. However, where accused not legally represented or presence vital for defence, judge should exercise discretion to adjourn hearing.

Decision of Jones 1972 2 A.E.R. 731 considered.

Abrahams' case 1895 V.L.R. 343 applied.

BETWEEN

Coram: Roberts, C.J., McMullin, V.-P. & Li, J.A.

Date: 24 February 1982

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J U D G M E N T

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Li, J.A.:

1. This is an appeal against conviction by leave of a single judge. Sometime last summer, the appellant, together with 3 other accused, faced 2 charges. The 1st charge was against all 4 of them. The 2nd was against the appellant only. Both charges were possession of dangerous drugs for the purpose of unlawful trafficking.

2. Their applications for bail were granted on the 18th of July. Date of trial was set down for the 21st of September last year. At the commencement of the trial, the appellant absconded. On application by prosecuting counsel and after consideration, the trial judge exercised his discretion to proceed with the trial in the absence of the appellant. Eventually all accused were acquitted of the 1st charge. The appellant was convicted of the 2nd charge in her absence.

3. The appellant was subsequently re-arrested in October. She applied for leave to appeal against conviction and asked for a new trial.

4. The only relevant ground for the purpose of this appeal is that the trial judge erred in exercising his discretion by proceeding with the trial in her absence.

5. In support of her application for bail after conviction last December, the appellant filed an affidavit. In paragraph 12 of her affidavit, she explained her absence from the trial. She said that her co-accused told her that they, the co-accused, would take all the blame and that it would not be necessary for her to attend trial. Hence her absence.

6. The trial judge, in his reasons for verdict, gave clear and precise reasons why he decided to proceed with the trial in the appellant's absence. He felt that she had voluntarily waived her right to be present and that, if trial was adjourned, prosecution witnesses might not be available and, if available, might not remember the facts that should be given in evidence.

7. In support of his application for the trial to proceed in the absence of the appellant, prosecuting counsel cited the case of Jones⁽¹⁾. In that case a defendant was legally represented. He was present in court until the prosecution had closed the case and a submission of no case to answer had been made and overruled. He left a note to his mistress stating the reason why he intended to jump bail. It was because the case was giving badly for him. He was subsequently re-arrested and extradited from Denmark. He appealed against his conviction, which occurred in his absence at the trial. Giving judgment for the Court of Appeal, Roskill L.J. referred to the case of Abrahams⁽²⁾ which was decided in 1895. He cited a passage from the judgment of Williams J. in Abrahams' Case⁽²⁾. Dealing with a situation where a person jumped bail Williams J. said at page 347 of 1895 V.L.R.:

.... if in such a case the accused was not represented by counsel in Court, or even if he were so represented, his presence was necessary for the proper conduct of his defence by his counsel, the Judge would, I apprehend, certainly exercise his discretion by postponing the trial."

8. The trial judge in the present case made the following remark which, if I may say so, was not only proper but very fair. He said:

"If I had read the judgment in Jones' Case⁽¹⁾ carefully and noted the above passages I doubt whether I would have made the order to continue the proceedings against the 4th Defendant, that is the appellant, in her absence. I think I was wrong to do so."

Having regard to this observation, and the judgment of Williams J. in Abrahams' Case⁽²⁾, we are of the opinion that in the interests of justice the trial judge should have exercised his discretion at the time to adjourn the trial vis-a-vis the appellant so as to give her a chance to defend her cause. This is particularly so because the appellant was not legally represented at the trial. Her presence was necessary for the conduct of her defence. She voluntarily absented herself from the trial. It is appreciated that danger mentioned in the last paragraph of the judgment of Roskill L.J. is real. He said:

"To grant this application, that is an application in the case of Jones⁽¹⁾, at this stage would, in the view of this court, be to put a premium on prisoners jumping bail; it may even have the effect of encouraging others to do so. It may also have as a side effect, increasing the reluctance of a court in a very long trial to grant bail lest the applicant's conduct be repeated by others. To put a premium on jumping bail is something which this court is not for one moment prepared to countenance."

However, the circumstances prevailing in the present case are different from those in the case of Jones⁽¹⁾. Jones⁽¹⁾ was legally represented up to the time when it was his turn to give evidence. The appellant was never legally represented at the trial. Her presence was vital for the conduct of her defence. In the interests of justice we feel that the risk mentioned by Roskill L.J. would have to be countenanced. Fortunately, in this part of the world, we have an efficient police force as evidenced by the fact that the appellant of the case was re-arrested within a month of her absconding bail. We note that the trial judge, in his judgment, very fairly expressed the view that he had misread Jones' Case⁽¹⁾ and that, on reflection, he consider that he probably exercised his discretion wrongly and that he should have granted an adjournment. We allow this appeal and order a new trial.

(1) (1972) 2 All E.R. 731

(2) (1895) V.L.R. 343

Representation:

Mr. Kumar Ramanathan (Jenkins, Oliver & Au) for appellant

Mr. S. K. Leung (Crown) for respondent