The Queen v. Chan Wai-man
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CACC001244/1983
BETWEEN
-------- Coram: Sir Alan Huggins, V.-P., Barker, J .A. & Power, J. Date: 1st December 1983 __________ JUDGMENT __________ Sir Alan Huggins, V.-P.: 1. The Appellant in this case was charged before the District Court in relation to some dangerous drugs offences. He was placed on bail. On 1st September he failed to appear in court in accordance with his bond. He was represented by a solicitor. The solicitor produced a "medical certificate". We are told that in fact it was not a medical certificate at all: it was a Hospital Admission Certificate, which certified that the Appellant was suffering from weakness of the fore-arm and wrist and had been admitted to hospital. The Crown objected that this was an inadequate certificate. The court agreed. It was not a certificate which indicated that the Appellant was unfit to come to court and the qualifications of the medical officer whose initials appeared on the document were not stated. No question arises as to whether or not that was a sufficient certificate. The judge thought it was not and the case was adjourned for the solicitor to get a further certificate or to arrange for the attendance of his client. 2. On the next day the Appellant was still not present and a certificate was produced purporting to come from the Queen Elizabeth Hospital and to have been signed by a Dr. Yuen. Our difficulty is that we do not have the precise terms of that certificate, because it was subsequently amended and we do not know which was the original part of the text and which was the addition, but it does seem that in its original form it was signed "Yuen" and no more, "for Consultant in Charge'', without any indication that the "Yuen" was a medical man, but he certificate, as I understand it, did say that the Appellant was not fit for attending court on 2nd September. Nevertheless the judge was not satisfied: he said:
That may well have been a legitimate view to take. The judge stood the case down for the specific purpose of arranging for the doctor to come to court and for the solicitor to telephone to him. The solicitor did so telephone. He spoke to the doctor who, in accordance with the Government regulations, declined to come without a subpoena. Thereupon the judge said: "I am not convinced that the defendant is genuinely ill". That again was a legitimate view to take, but that was not the point: the question was not whether he was genuinely ill but whether he ought to be forced to come to the court. The Crown also opposed the certificate. The judge then said: "I will have to issue arrest warrant and consider estreating the bail". However, he went on: "I will adjourn further to enable [the solicitor] to go to Queen Elizabeth Hospital by car to see the defendant and the doctor - stand down to 12 noon." The solicitor did go to the hospital. He saw the doctor and the doctor thereupon amended the certificate. As it would seem, he added to the statement that the Appellant was not fit to attend court the reason, saying "since we would like to have observation for further period of time to see if his condition is stablised". The doctor then adds his full name and his qualifications. The solicitor said that he had seen the doctor. It was, as I understood it and as, I think, my brother Barker, J .A. understood it also, suggested that Mr. Fung, the solicitor, was not telling the truth when he said that the doctor had signed this. That is an entirely unjustified allegation and unsupported by any evidence of any kind. The Crown continued to oppose the certificate saying that weakness of the arm could not conceivably be a reason for failing to attend court. That, with great respect, was not a matter upon which a non-medically qualified lawyer ought to express any opinion, at least where there is medical evidence to the contrary. The judge thereupon estreated the bail. 3. In my view that was not justified. I, as I said in argument, fully appreciate that a judge who is faced with somebody whom he believes to be a recalcitrant defendant is in a difficult position, but it is important that the liberty of the subject should be protected. If the defendant has in his possession a medical certificate stating that he is unfit to attend court, then in my view the court ought not to reject that certificate and force the defendant to come to court without first having confirmed from the doctor that the medical certificate is unjustified. I do not say for a moment that a certificate from a doctor is binding. There may even be circumstances in which a certificate is so contradictory that it can be disregarded, but to say that a doctor who wishes to keep a patient in hospital under observation is acting improperly or that the patient himself is acting improperly if he acts upon the advice of his doctor, seems to me to be entirely wrong. 4. In all the circumstances of this case I think that the order estreating the bail was unjustified and ought to be set aside and I would allow this appeal with costs. Barker, J.A.: 5. I agree fully with what my brother the Vice-President has said and would merely add this. Mr. Fung did not give evidence, because he, being a solicitor of the Supreme Court, was speaking on behalf of his client. He said that he had seen the defendant in Queen Elizabeth Hospital and had also seen the doctor, who had added further wording to the certificate produced earlier today. 6. It was alleged by counsel for the Crown that Mr. Fung was deliberately misleading the court. There is no evidence of this. It was a wholly improper allegation to make and was one which ought never to have been made to this court. 7. I agree with the order proposed by the Vice-President, both as to the setting aside of the order and as to costs. Power, J.: 8. The only thing I wish to add is that the learned judge, taking the view he did take of the situation, should have indicated to Mr. Fung that he was not prepared to act upon the certificate alone, that the doctor would have to be called and that he would issue a subpoena requiring him to appear before the court. That, in my view, would have been the proper course, and it would then, having heard the doctor, have been for the learned judge to determine what course he should take. Apart from making those observations, I wish to say I agree entirely with the other members of the court. 1st December 1983. |